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.shop among four gTLDs heading to auction

Kevin Murphy, October 30, 2015, Domain Registries

The new gTLDs .shop, .shopping, .cam and .phone are all set to go to auction after their various delays and objections were cleared up.

It seems that .shop and .shopping contention sets remain merged, so only one string from one applicant will emerge victorious.

That’s due to a completely mad String Confusion Objection decision that ruled the two words are too confusingly similar to coexist in the DNS.

That SCO ruling was made by the same guy who held up both sets of applications when he ruled that .shop and .通販 (“.onlineshopping”) were also too confusingly similar.

The two rulings combined linked the contention sets for all three strings.

.通販 applicant Amazon appealed its SCO loss using a special process that ICANN created especially for the occasion, and won.

But .shop and .shopping applicants were not given the same right to appeal, meaning the auction will take place between nine .shop applicants and .shopping applicants Uniregistry and Donuts.

Donuts is an applicant for .shop and .shopping, meaning it will have to make its mind up which string it prefers, if it intends to win the auction.

If it’s a private auction, Donuts would presumably qualify for a share of its own winning bid. Weird.

(UPDATE: That was incorrect).

The other contention set held up by an inconsistent SCO decision was .cam, which was originally ruled too similar to .com.

Rightside won its appeal too, meaning it will be fought at auction between Famous Four, Rightside and AC Webconnecting.

.phone had been held up for different reasons.

It’s a two-way fight between Donuts and Dish DBS, a TV company that wanted to run .phone as a closed generic. Like almost all closed generic applicants, Dish has since changed its plans.

Two new gTLD confusion decisions thrown out

Kevin Murphy, October 15, 2014, Domain Policy

ICANN has reopened the contention sets for .cam and .通販 after deciding that two String Confusion Objection panels may have been wrong to reject certain applications.

Two rulings — that .cam is confusingly similar to .com and that .通販 is confusingly similar to .shop (really) — will now head to an appeals panel for a “final” determination.

The decision was made by the ICANN board’s New gTLD Program Committee this week at the ICANN 51 public meeting in Los Angeles.

The first case being reopened for scrutiny is Verisign versus Rightside, where the original SCO panel found that .cam and .com were too similar to coexist on the internet.

But a different panelist found that the two strings were not confusingly similar in objections filed by Verisign against two other applicants — Dot Agency and AC Webconnecting.

The opposing rulings meant that Rightside’s application would have been kicked out of the .cam contention set, which hardly seems fair.

This and many other “perceived inconsistencies” led to the ICANN board being pressured to come up with some kind of appeals process, which it agreed to do in February.

Verisign, unfairly in my view, was not given the opportunity to appeal the two .cam decisions that went against it, even though they were made by the same panelist for the same reasons.

The second, altogether more peculiar, case was .shop applicant Commercial Connect versus .通販 applicant Amazon.

The panelist in that case seemed to have checked his brain at the door that day, concluding that the two strings are confusingly similar simply because 通販 means “online shopping” in Japanese.

Another panelist, in a different case also involving Commercial Connect, had found that .购物 (Chinese for “shopping”) was not confusingly similar to .shop because duh.

ICANN’s NGPC has now decided that the two controversial decisions are “not being in the best interest of the New gTLD Program and the Internet community”.

Both .cam and .通販 will now be referred to a three-person panel at the International Center for Dispute Resolution, the same body that processed the original objections, for a final determination.

Reconsideration is not an appeals process: ICANN delivers another blow to Amazon’s gTLD hopes

Kevin Murphy, October 15, 2013, Domain Policy

Amazon has lost its appeal of a ruling that says its applied-for new gTLD .通販 is “confusingly similar” to .shop, with ICANN ruling that its Reconsideration mechanism is not an appeals process.

The e-commerce giant lost a String Confusion Objection filed by .shop applicant Commercial Connect in August, with panelist Robert Nau ruling that the two strings were too confusing to co-exist.

That’s despite one of the strings being written in Latin script and the other Japanese. The ruling was based on the similarity of meaning: 通販 means “online shopping”.

Amazon immediately filed a Reconsideration Request with ICANN.

Days earlier, Akram Atallah, president of ICANN’s Generic Domains Division, had described this process as one of the “avenues for asking for reconsidering the decision”.

Atallah was less clear on whether Reconsideration was applicable to decisions made by third-party panels — the new gTLD program’s Applicant Guidebook contains conflicting guidance.

ICANN’s Board Governance Committee, which handles Reconsideration Requests, has now answered that question: you can ask for Reconsideration of a new gTLD objection ruling, but you’ll only win if you can prove that there was a process violation by the panel.

In its decision, the BGC stated:

Although Commercial Connect’s Objection was determined by a third-party DRSP, ICANN has determined that the Reconsideration process can properly be invoked for challenges of the third-party DRSP’s decisions where it can be stated that either the DRSP failed to follow the established policies or processes in reaching the decision, or that ICANN staff failed to follow its policies or processes in accepting that decision.

That’s moderately good news as a precedent for applicants wronged by objections, in theory. In practice, it’s likely to be of little use, and it was of no use to Amazon. The BGC said:

In the context of the New gTLD Program, the Reconsideration process does not call for the BGC to perform a substantive review of DRSP Panel decisions; Reconsideration is for the consideration of process- or policy-related complaints.

As there is no indication that either the ICDR or the Panel violated any policy or process in accepting and sustaining Commercial Connect’s Objection, this Request should not proceed. If Amazon thinks that it has somehow been treated unfairly in the process, and the Board (through the NGPC) adopts this Recommendation, Amazon is free to ask the Ombudsman to review this matter.

While the BGC declined to revisit the substance of the SCO, it did decide that it’s just fine for a panelist to focus purely on the meaning of the allegedly confusing strings, even if they’re wholly visually dissimilar.

The Panel’s focus on the meanings of the strings is consistent with the standard for evaluating string confusion objections. A likelihood of confusion can be established with any type of similarity, including similarity of meaning.

In other words, Nau’s over-cautious decision stands: .通販 and .shop will have to enter the same contention set.

That’s not great news for Amazon, which will probably have to pay Commercial Connect to go away at auction, but it’s also bad news for increasingly unhinged Commercial Connect, whose already slim chances of winning .shop are now even thinner.

Commercial Connect had also filed a Reconsideration Request around the same time as Amazon’s, using the .通販 precedent to challenge a much more sensible SCO decision, which ruled that .shop is not confusingly similar to .购物, Top Level Domain Holdings’ application for “.shopping” in Chinese.

The BGC ruled that the company had failed to adequately state a case for Reconsideration, meaning that this objection ruling also stands.

The big takeaway appears to be that the BGC reckons it’s okay for objection panels to deliver decisions that directly conflict with one another.

This raises, again, questions that have yet to be answered, such as: how do you form contention sets when one string has been ruled confusingly similar and also not confusingly similar to another?