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Panel throws out ludicrous .shop confusion ruling

Kevin Murphy, August 25, 2015, Domain Registries

The new gTLD strings .shop and .通販 are not too confusingly similar-looking to coexist on the internet.

While that may be blindingly obvious to anyone who is not already blind, it’s taken the ICANN process three years to arrive at this conclusion.

An August 18 ruling by a three-person International Centre for Dispute Resolution appeals panel has “reversed, replaced and superseded” a two-year-old decision by a lone String Confusion Objection panelist. The appeals panel found:

the [original] expert panel could not have reasonably come to the decision reached by it in connection with the underlying String Confusion Objection

The two strings indisputably have no visual or aural similarity, are in different languages, written in different scripts that look very different, and have different phonetic spellings and pronunciations.

.通販 is the Japanese for “.onlineshopping”, applied for by Amazon in the 2012 new gTLD round.

.shop is a contested string applied for by Commercial Connect and others.

The two strings were ruled dissimilar by the String Similarity Panel in February 2013, but Commercial Connect filed the SCO a few weeks later.

In an SCO, the complainant must show that it is “probable, not merely possible” that the two strings will get mixed up by internet users.

In August 2013, ICDR panelist Robert Nau ignored that burden of proof and inexplicably ruled that the two strings were too similar to coexist and should therefore be placed in a contention set.

Nau would later rule that .shop and .shopping are also confusingly similar.

The .通販 decision was widely criticized for being completely mad.

Amazon appealed the decision via the ICANN Request for Reconsideration, but predictably lost.

After much lobbying, last October ICANN’s board of directors created an appeals process for SCO decisions, but limited the appellant pool to Amazon with .通販 and applicants for .cam (which had been ruled similar to .com).

Now, 10 months later, we finally have a sane decision in the Amazon case. Its application will presumably now be removed from the .shop contention set.

Read the final ruling here.

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.

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.

The plurals debate is over as ICANN delegates 17 more new gTLDs

Kevin Murphy, December 18, 2013, Domain Policy

Another 17 new gTLDs were delegated to the DNS root last night, most of them belonging to Donuts.

Notably, Donuts now runs .photos and .careers, the first two delegated gTLDs where live applications also exist for the singular form of the string.

Uniregistry is currently contracted and awaiting the delegation of .photo, while dotCareer is already contracted for .career.

The debate about whether ICANN should permit singular and plural versions of the same string to coexist is now surely over.

Just a week ago, the Internet Association — a trade group comprising Amazon, Google, AOL, Yahoo, Salesforce, Zynga and many others — called on ICANN to rethink its policy of coexistence.

Calling the policy a “violation of user trust”, the Association said (pdf), “the existence of these domain names poses significant risks to the DNS, Internet companies, and their users”.

The Association noted that the Governmental Advisory Committee had strong concerns about singular and plural coexistence, due to the risk of consumer confusion.

String Confusion Objection panels have reached quite different conclusions about whether adding an “s” makes a string confusingly similar to another.

Personally, while I’m all for competition, I believe coexistence will lead to parasitical business models that will bring the domain name industry into further disrepute.

I know for a fact that some registries are considering the merits of tailgating their confusingly similar competitors.

But it seems ICANN’s decision was final.

There’s currently no mechanism for ICANN to un-approve a gTLD once it’s been delegated — failing serious wrongdoing by the registry — so it’s difficult to see how it could now decide that plural and singular forms of the same string should be mutually exclusive.

While I’m sure the Internet Association and others will carry on complaining, I think they’re now talking to deaf ears.

There were 17 new gTLDs delegated yesterday in total, 15 of which were in Donuts portfolio.

Donuts has also added the following to its portfolio: .cab, .camp, .academy, .center, .company, .computer, .domains, .limo, .management, .recipes, .shoes, .systems and .viajes (Spanish for “travel”).

CONAC, the China Organizational Name Administration Center had .政务 (“government”) and .公益 (“public interest”) delegated.