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ICANN wins .hotels/.hoteis confusion appeal but has to pay up anyway

Kevin Murphy, March 5, 2015, Domain Policy

The proposed new gTLDs .hotels and .hoteis are too confusingly similar to coexist on the internet.

That’s the result of an Independent Review Process decision this week, which denied .hotels applicant Booking.com’s demand to have ICANN’s string confusion decision overturned.

But the IRP panel, while handing ICANN a decisive victory, characterized the string confusion and IRP processes as flawed and said ICANN should have to pay half of the panel’s $163,000 costs.

Booking.com filed the IRP a year ago, after the new gTLD program’s String Similarity Panel said in February 2013 that .hotels was too similar to rival Despegar Online’s proposed .hoteis.

.hoteis is the Portuguese translation of .hotels. Neither string was contested, so both would have been delegated to the DNS root had it not been for the confusion decision.

In my view, the String Similarity Panel’s decision was pretty sound.

With an upper-case i, .hoteIs is virtually indistinguishable from .hotels in browsers’ default sans-serif fonts, potentially increasing the ease of phishing attacks.

But Booking.com, eager to avoid a potentially costly auction, disagrees with me and, after spending a year exhausting its other avenues of appeal, filed an IRP in March 2013.

The IRP decision was handed down on Tuesday, denying Booking.com’s appeal.

The company had appealed based not on the merits of the SSP decision, but on whether the ICANN board of directors had acted outside of its bylaws in establishing an “arbitrary” and opaque SSP process.

That’s because the IRP process as established in the ICANN bylaws does not allow appellants to changed a decision on the merits. IRP panels are limited to:

comparing contested actions of the Board to the Articles of Incorporation and Bylaws, and with declaring whether the Board has acted consistently with the provisions of those Articles of Incorporation and Bylaws.

The IRP panel agreed that the SSP process could have been fairer and more transparent, by perhaps allowing applicants to submit evidence to the panel and appeal its decisions, saying:

There is no question but that that process lacks certain elements of transparency and certain practices that are widely associated with requirements of fairness.

But the IRP panel said Booking.com was unable to show that the ICANN board acted outside of its bylaws, highlighting the limits of the IRP as an appeals process:

In launching this IRP, Booking.com no doubt realized that it faced an uphill battle. The very limited nature of the IRP proceedings is such that any IRP applicant will face significant obstacles in establishing that the ICANN Board acted inconsistently with ICANN’s Articles of Incorporation or Bylaws. In fact, Booking.com acknowledges those obstacles, albeit inconsistently and at times indirectly.

Booking.com has failed to overcome the very obstacles it recognizes exist.

The IRP panel quoted members of ICANN’s New gTLD Program Committee extensively, highlighting comments which questioned the fairness of the SSP process.

In contrast to usual practice, where the losing party in an IRP bears the costs of the case, this panel said the $163,000 costs and $4,600 filing fee should be split equally between ICANN and Booking.com:

we can — and we do — acknowledge certain legitimate concerns regarding the string similarity review process raised by Booking.com, discussed above, which are evidently shared by a number of prominent and experienced ICANN NGPC members.

In view of the circumstances, each party shall bear one-half of the costs of the IRP provider

Booking.com and Despegar will now have to fight it out for their chosen strings at auction.

The full decision can be read in PDF format here. Other documents in the case can be found here.

The TL;DR version: ICANN wins because it has stacked the appeals deck in its favor and the IRP process is pretty much useless, so we’re going to make them pay up for being dicks.