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ICANN reveals gTLD objections appeals process

Kevin Murphy, February 12, 2014, Domain Policy

Two new gTLD applicants would get the opportunity to formally appeal String Confusion Objection decisions that went against them, under plans laid out by ICANN today.

DERCars and United TLD (Rightside), which lost SCOs for their .cars and .cam applications respectively, would be the only parties able to appeal “inconsistent” objection rulings.

DERCars was told that its .cars was too similar to Google’s .car, forcing the two bids into a contention set. But Google lost similar SCO cases against two other .cars applicants.

Likewise, Rightside’s .cam application was killed off by a Verisign SCO that stated .cam and .com were too similar, despite two other .cam applicants prevailing in virtually identical cases.

Now ICANN plans to give both losing applicants the right to appeal these decisions to a three-person panel of “Last Resort” operated by the International Centre for Dispute Resolution.

ICDR was the body overseeing the original SCO process too.

Notably, ICANN’s new plan would not give Verisign and Google the right to appeal the two .cars/.cam cases they lost.

Only the applicant for the application that was objected to in the underlying SCO and lost (“Losing Applicant”) would have the option of whether to have the Expert Determination from that SCO reviewed.

There seems to be a presumption by ICANN already that what you might call the “minority” decision — ie, the one decision that disagreed with the other two — was the inconsistent one.

I wonder if that’s fair on Verisign.

Verisign lost two .cam SCO cases but won one, and only the one it won is open for appeal. But the two cases it lost were both decided by the same ICDR panelist, Murray Lorne Smith, on the same grounds. The decisions on .cam were really more 50-50 than they look.

According to the ICANN plan, there are two ways an appeal could go: the panel could decide that the original ruling should be reversed, or not. The standard of the review is:

Could the Expert Panel have reasonably come to the decision reached on the underlying SCO through an appropriate application of the standard of review as set forth in the Applicant Guidebook and procedural rules?

The appeals panelists would basically be asked to decide whether the original panelists are competent or not.

If the rulings were not reversed, the inconsistency would remain in place, making the contention sets for .car, .cars and .cam stay rather confusing.

ICANN said it would pay the appeals panel’s costs.

The plan (pdf) is now open for public comment.

Conflicting gTLD objection decisions to get appeals process?

Kevin Murphy, February 8, 2014, Domain Policy

ICANN seems to be considering an appeals process for new gTLD applicants that feel they’ve been wronged by dubious String Confusion Objection decisions.

But the process might be limited to applicants for .car, .cars and .cam.

In a resolution this Wednesday, ICANN’s New gTLD Program Committee said:

the NGPC is considering potential paths forward to address the perceived inconsistent Expert Determinations from the New gTLD Program String Confusion Objections process, including implementing a review mechanism. The review will be limited to the String Confusion Objection Expert Determinations for .CAR/.CARS and .CAM/.COM.

Why only those strings? I’m guessing it’s because the conflicting decisions would make for extremely confusing contention sets.

There were three SCOs against .cars applications, filed by Google, which has applied for .car. Google won one case but lost the other two.

That would mean that Google’s .car application would be in contention with one of the applicants but not the other two, hardly a fair outcome.

Similarly, Verisign objected to five .cam applications due to their similarity to .com. It won one and lost the other four.

The NGPC resolution calls for the publication, for comment, of a reviews process designed to untangle this mess. It does not appear to have been published yet.

But it seems that whatever ICANN has come up with will not apply to other applicants who feel they’ve been wronged by odd SCO, or other objection, decisions.

Interview: Atallah on new gTLD objection losers

Kevin Murphy, August 16, 2013, Domain Policy

Filing a lawsuit against a competitor won’t stop ICANN rejecting your new gTLD application.

That’s according to Akram Atallah, president of ICANN’s Generic Domains Division, who spoke to DI yesterday about possible outcomes from new gTLD objection rulings.

He also said that applicants that believe they’ve been wronged by the objection process may have ways to appeal the decisions and addressed what happens if objection panels make conflicting decisions.

Lawsuits won’t stay ICANN’s hand

In light of the lawsuit by Del Monte International GmbH against Del Monte Corp, as reported by Domain Name Wire yesterday, I asked Atallah if ICANN would put applications on hold pending the outcome of legal action.

The GmbH lost a Legal Rights Objection filed by the Corp, which is the older company and owner of the “Del Monte” trademark pretty much everywhere, meaning the GmbH’s bid, under ICANN rules, must fail.

Atallah said lawsuits should not impact ICANN’s processes.

“For us it’s final,” Atallah said. “If they have to go outside and take legal action then the outcome of the legal action will be enforceable by law and we will have to abide by it. But from our perspective the [objection panel’s] decision is final.”

There might be ways to appeal

In some cases when an applicant loses an objection — such as a String Confusion Objection filed by an existing TLD or an LRO filed by a trademark owner — the only step left is for it to withdraw its application and receive whatever refund remains.

There have been no such withdrawals so far.

I asked Atallah whether there were any ways to appeal a decision that would lead to rejection.

“The Applicant Guidebook is very clear,” he said. “When an applicant loses an objection, basically their application will not proceed any further. We would like to see them withdraw their application and therefore finish the issue.”

“Of course, as with anything ICANN, they have some other avenues for asking for reconsidering the decision,” he added. “Basically, going to the Ombudsman, filing a Reconsideration Request, or even lobbying the board or something.”

I wondered whether the Reconsideration process would apply to decisions made by third parties such as arbitration panels, and Atallah admitted that the Guidebook was “murky” on this point.

“There are two mentions in the Guidebook of this, I think,” he said. “One mentions that it [the panel’s decision] is final — the application stops — the other mentions that it is advice to staff.”

That seems to be a reference to the Guidebook at 3.4.6, which states:

The findings of the panel will be considered an expert determination and advice that ICANN will accept within the dispute resolution process.

This paragraph suggests that ICANN staff have to accept the objection panel’s decision. That would make it an ICANN decision to reject the application, which can be challenged under Reconsideration.

Of course, the Reconsideration process has yet to see ICANN change its mind on any matter of substance. My feeling is that to prevail you’d at a minimum have to present the board with new information not available at the time the original decision was made.

What if different panelists reach opposite conclusions?

While the International Centre for Dispute Resolution has not yet published its panels’ decisions in String Confusion Objection cases, a few have leaked out.

(UPDATE: This turns out not to be correct. The decisions have been published, but the only way to find them is via obscured links in a PDF file buried on the ICDR web site. Way to be transparent, ICDR.)

I’ve read four, enough to see that panelists are taking diverse and sometimes opposing views in their decision-making.

For instance, a panelist in .car v .cars (pdf) decided that it was inappropriate to consider trademark law in his decision, while the panelist in .tv v .tvs (pdf) apparently gave trademark law a lot of weight.

How the applicants intend to use their strings — for example, one may be a single-registrant space, the other open — seems to be factoring into panelists’ thinking, which could lead to divergent opinions.

Even though Google’s .car was ruled not confusingly similar to Donuts’ .cars, it seems very possible that another panelist could reach the opposite conclusion — in one of Google’s other two .cars objections — based on trademark law and proposed usage of the gTLD.

If that were to happen, would only one .cars application find itself in the .car contention set? Would the two contention sets be linked? Would all three .cars applications wind up competing with .car, even if two of them prevailed against Google at the ICDR?

It doesn’t sound like ICANN has figured out a way to resolve this potential problem yet.

“I agree with you that it’s an issue to actually allow two panels to review the same thing, but that’s how the objection process was designed in the Guidebook and we’d just have to figure out a way to handle exceptions,” Atallah said.

“If we do get a case where we have a situation where a singular and a plural string — or any two strings actually — are found to be similar, the best outcome might be to go back to the GNSO or to the community and get their read on that,” he said. “That might be what the board might request us to do.”

“There are lots of different ways to figure out a solution to the problem, it just depends on how big the problem will be and if it points to an unclear policy or an unclear implementation,” he said.

But Atallah was clear that if one singular string is ruled confusing to the plural version of the same string, that panel’s decision would not cause all plurals and singulars to go into contention.

“If a panel decides there is similarity between two strings and another panel said there is not, it will be for that string in particular, it would not be in general, it would not affect anything else,” he said.

ICANN, despite Governmental Advisory Committee advice to the contrary, decided in late June that singular and plural gTLDs can coexist under the new regime.

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