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String confusion in disarray as Demand’s .cam loses against Verisign’s .com

Kevin Murphy, August 20, 2013, 09:29:41 (UTC), Domain Policy

Demand Media is demanding an ICANN review of its objections policy, after its applied-for new gTLD .cam was beaten in a String Confusion Objection by .com registry Verisign.
A International Centre for Dispute Resolution panelist has ruled (pdf) that .cam and .com are too confusingly similar to coexist, meaning Demand’s bid for .cam must be rejected by ICANN.
But the ruling by Urs Laeuchli conflicts with two other ICDR panel decisions on .cam, which both found that the string is NOT confusingly similar to .com and therefore can be delegated.
So while Demand’s .cam bid, under a strict reading of the rules, is now supposed to be rejected, applications for identical strings filed by AC Webhosting and dotAgency can go ahead.
ICANN has been thrown a curve ball it is not yet fully prepared to deal with.
As Akram Atallah, president of ICANN’s Generic Domains Division, told DI last week, it’s possible that the policy or the implementation of that policy may need to be revisited by ICANN and the community.
United TLD, the Demand Media subsidiary that applied for .cam, is now calling for precisely that, with vice president of business and legal affairs Statton Hammock writing today:

String confusion objections are meant to be applicant agnostic and have nothing to do with the registration or use of the new gTLD. What matters in string confusion objections is whether a string is visually, aurally or, according to ICANN’s Applicant Guidebook, otherwise “so nearly resembles another that it is likely to deceive or cause confusion.” Individuals may disagree on whether .CAM and .COM are similarly confusing, but there can be no mistake that United TLD’s .CAM string, AC Webhosting’s .CAM string, and dotAgency Limited’s .CAM string are all identical. Either all three applications should move forward or none should move forward.

The .cam cases are not alone in presenting ICANN with SCO problems.
Last week, Donuts’ bid for .pets was ruled confusingly similar to Google’s .pet, despite previous ICDR cases finding that plurals and singulars are not too confusing to coexist.
Where the .cam panelists disagreed
While there were three .cam cases, two of them were decided by the same panelist. It seems that both panelists were provided with very similar sets of evidence in all three cases.
It’s relevant to note that neither panelist — unlike some of their colleagues in other cases — thought it was appropriate to apply trademark law such as the DuPont factors in their decisions.
They did, however, consider the expected use cases of .cam.
All three applicants take .cam as short for “webcam” or “camera” and would target registrants interested in those fields (a lot of the use will likely be pornographic — AC Webconnecting is a porn firm after all).
But all three applicants also want to run “open” gTLDs, with no registration restrictions.
ICDR panelist Murray Smith was in charge of both the AC Webconnecting and dotAgency cases. He addressed expected usage explicitly in dotAgency, and explained why:

It is not just the visual, phonetic and conceptual similarity between the words that must be taken into account. In my view the greater emphasis should be focused on the use of the disputed extensions in the context of modern Internet usage. It is this context that compels the conclusion that an average Internet user would not be confused and would know that a .com website is probably a commercial website while a .cam websites would be something more focused in a particular field.

In AC Webconnecting, he wrote:

I agree that a consumer would quickly realize that a .cam website is likely associated with photography or camera use and is different than a .com website in use generally by a myriad of commercial entities.

So he’s putting the “greater emphasis” on usage — a factor that is not explicitly mentioned in the Applicant Guidebook’s description of the SCO and which may quite often differ between applicants.
Right there, in Smith’s interpretation of his task, we have a reason why SCOs will produce different results for identical strings.
I find Smith’s thinking baffling for a couple of reasons.
First, “a consumer would quickly realize that a .cam website is likely associated with photography” seems to ignore the existence of a bazillion .com web sites that are also associated with photography.
When did “commercial entities” and “photography or camera use” become mutually exclusive? Is photographyblog.com not confusingly similar to photographyblog.cam?
Second, he ignores the fact that basically anyone will be able to register a .cam web site for basically any purpose. None of the applicants want to restrict the gTLD to camera-related stuff.
ICDR panelist Laeuchli, in the Demand Media .cam case, raised this precise point, saying:

“.com” and “.cam” would use the same channels appealing to a broad audience. Even though according to Applicant, its envisioned TLD will “likely appeal” to a specific audience, it plans to operate “.cam” as an open gTLD. This would lead to extensive overlap.

Panelist Smith has some other notions about confusion that seem to defy common sense. He wrote in the AC Webconnecting case:

The .com TLD is the most widely recognized string in the Internet world. No reasonable Internet user would fail to recognize the .com TLD. The very reputation of the .com name serves to limit the potential for an average Internet user to be confused by the proposed .cam TLD. It is indeed unlikely that an online consumer would confuse a .com website with a .cam website.

Does this not strike anyone else as bad thinking?
It seems to me to be a little like saying that it’s perfectly okay to market a brand of carbonated beverage called Cuke, because Coke is so famous that nobody could possibly be confused. I don’t know where the law stands on that issue, but I’m pretty sure Coke wouldn’t be happy about it.
There’s also some weirdness in Laeuchli’s decision in the Demand case.
He puts some weight on the similarity scores produced by the controversial Sword algorithm in his decision, but apparently without doing even the basic research. He writes in his findings:

No matter what the standards and purpose the ICANN SWORD algorithm includes, it has comparative value.
…
Since pairs such as “God” and “dog” (85%) reach similarity scores of 84% and higher, how much more similar would “cxm” and “cxm” be (x being replaced with a vowel)!

The answer is that, according to Sword, they’re less similar. Sword scores “cam” v “com” at 63%.
Laeuchli knows it’s 63%, because he makes reference to that fact in his summary of Verisign’s evidence. He doesn’t need to speculate about the number based on what “god” v “dog” scores (and if he did the “dog” v “god” query himself, why on earth didn’t he just query “com” v “cam” too?)
His finding that .cam and .com will cause probable confusion seems to be based largely on expert witness testimony provided by both Verisign and Demand, in which he found Verisign’s more persuasive.
This evidence seems to have largely comprised the opinions of linguists, examining mouth shapes and acoustic frequencies, and market research looking into internet user behavior. As none of it has been published, it’s difficult to judge which side had the better arguments.
But it’s undeniably about the similarity of the strings, rather than the proposed usage, which makes Demand Media’s statement today — that SCOs “are meant to be applicant agnostic and have nothing to do with the registration or use of the new gTLD” — quite confusing.
Demand lost its case based on the string similarity, whereas the other two applicants won theirs based on the usage.
Perhaps Demand senses that its .cam application will not be immediately rejected if ICANN reopens the debate about string similarity. If think it’s probably correct.

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Comments (8)

  1. Constantine Roussos (.MUSIC) says:
    August 20, 2013 at 2:23 pm

    Demand Media is demanding an ICANN review of its objections policy? 🙂 Welcome to the world of objections and inconsistencies. Under this light we should open a new can of worms in the case where one panelist accepts additional submissions and another does not based on the SAME grounds and string, right?
    Perhaps ICANN should have taken the time to develop consistent policies that these 3rd-parties would follow and make it a point to consolidate cases. We argued these issues on consolidation for consistency purposes and Portfolio applicants complained about it. Now some are complaining about it to make their “story” work.
    I also want to know why ICANN is allowing dispute resolution providers to have decisions made public before other proceedings on the same string and Objector are in process. There is a huge issue of panelist bias which concerns releasing decisions one at a time and we have seen a lot of Panelists merely pointing to other LRO panelists decisions for their reasoning and not making an independent decision. In court cases the jury is not allowed to watch the media/news for a reason: bias. You have not seen the end of the LRO debacle and this issue of inconsistency and improper process is leaking into the other type of Objections as well – like this one (String Similarity) and we already have the .PET vs .PETS issue.
    There is a whole host of other issues here as well. Perhaps Disenberg, the Amazon attorney should be investigated too because he was a WIPO Panelist rendering decisions against Objectors (and I might add Amazon was objected to a few times in LROs by us and others – the one .MUSIC LRO case is still pending but obviously since the first flawed .MUSIC decision was made against us it was almost a guarantee the rest would be negative for us) while on the other hand he is still representing Amazon in Community Objections. No conflict of interest?
    A lot of information will come out in due course and ICANN will face the unintended consequence of not taking the responsibility of making decisions they should have made concerning the way objections were rendered, not making a decision on closed strings and agreeing on singulars/plurals despite GAC’s advice which I agree with.
    My guess is that Panelists will have different decisions on Amazon’s closed strings in Community Objections as well. That will open up a new can of worms, this time about closed strings. That is my next prediction.
    That said Demand Media should not be complaining about an improper process since it “miraculously” passed background checks despite the cybersquatting issues they had and the fact that their CEO Rosenblatt was involved in the largest spyware ever case as Intermix/Myspace chief executive, settling for $7.5 million (Just to refresh ones memory: http://news.cnet.com/Intermix-hit-with-spyware-suit/2100-7348_3-5688609.html and http://www.ecommercetimes.com/story/43894.html). Not sure what was worse: the Intermix/Myspace scandal current or the Google NSA privacy scandal (which ICANN is turning a blind eye on).
    Of course there were loophole created and we never got word how the 15% shareholder threshold was determined by ICANN staff and why not all shareholders were not disclosed in an application. Since only shareholders with over 15% can be disclosed and newly formed “shell” companies with no history could be created for this process, the loopholes for abuse were already put in place. My next question is how did Google pass background checks? Donuts? I can come up with a few cases were Google was found guilty of privacy violations and copyright infringement. We will leave that for a future story.
    I find it fascinating that some Applicants who have circumvented the Applicant Guidebook using loopholes are now complaining about the “process.” My prediction is the new gTLD Program will be in disarray soon and ICANN will be the one to blame because of lack of leadership and handing everything to 3rd-parties who were chosen (many without the appropriate training on the goals of the program and the unintended consequences of their decisions) to “save the day” because ICANN is playing it safe by making zero decisions where they see there is a potential to be sued – even in the most obvious ones: plurals/singulars and closed strings for semantic terms.
    As one of the biggest ICANN supporters I can say I am very disappointed in the direction of the new gTLD program. Time for ICANN to figure everything out right now before everything gets out of hand. I am shocked that obvious decisions were not made and ICANN is playing it “safe.” In this case “safe” is the most risky. Demand Media can complain all they want. Welcome to the club. You will not be the last one joining.
    My 2 cents on the matter and just a hunch on predicting the future of this Program. Let the dominoes begin.

    Reply
  2. John Berryhill says:
    August 20, 2013 at 3:18 pm

    Then they said, “Come, let us build ourselves a city, with a tower that reaches to the heavens, so that we may make a name for ourselves; otherwise we will be scattered over the face of the whole earth.”
    5 But the Lord came down to see the city and the tower the people were building. 6 The Lord said, “If as one people speaking the same language they have begun to do this, then nothing they plan to do will be impossible for them. 7 Come, let us go down and confuse their language so they will not understand each other.”
    8 So the Lord scattered them from there over all the earth, and they stopped building the city.

    Reply
  3. Acro says:
    August 20, 2013 at 4:15 pm

    There is another moral to the story: God was afraid that the tower of Babel would threaten his very existence, so he conveniently introduced the language barrier to confuse those that attempted to build it. Think of God as the .com and you have yourselves a parable straight from the Bible.

    Reply
  4. Paul Stahura says:
    August 20, 2013 at 9:17 pm

    With regard to the objections, the Applicant Guidebook must be followed explicitly. If the panelist made independent decisions outside of the clearly defined AGB criteria (by, for example, going beyond visual, phonetic and meaning, and into the panelist’s interpretation of use, which is not a criteria in the AGB), ICANN must step in to correct the situation.

    Reply
    • Constantine Roussos (.MUSIC) says:
      August 21, 2013 at 6:23 pm

      Under that note Paul, the Community Objections against Donuts in .BAND and .MUSIC should be upheld since both your open applications lacked safeguards and ICANN NGPC voted to accept these safeguards which your open music-themed applications lacked. AGB clearly states that Material Changes that create unfairness to other applicants or create precedent are not allowed (http://newgtlds.icann.org/en/applicants/customer-service/change-requests).
      Objection to Donuts was filed in March 2013 based on lack of Safeguards. GAC and ICANN agreed that safeguards were not in place (and not in Donuts’ applications for music-themed strings) and later voted on accepting them. Objections obviously should be upheld for this reason since both GAC and ICANN agreed on the lack of safeguards.
      So what is your “story” now? That these are not “material changes” and that the Objector should have predicted the future that there would be a GAC Communique and ICANN NGPC accepting safeguards?
      Unless you believe that GAC advice and ICANN agreeing on safeguards category 2 is irrelevant. I do agree Paul. Let us follow the AGB. But I am sure you will have a different spin on these Community Objections led by your assertion that there is no such thing as “communities” and that each TLD should go to auction. Certainly serves your “story” well.
      Should be interesting to see how these decisions pan out and I do expect some consequences resulting from them (intended or unintended depending on the result).
      The issue with objections is that there is no consistency of decisions. The AGB is flawed as a result. Each string should have been consolidated under one Panelist. We fought for this but nearly every Applicant opposed it and wanted a “solo”, non-consolidated case with a different Panelist with results coming out at different dates which prejudice later results based on the same string/Objector. Hence you have these results.
      I personally do not believe the AGB is the holy bible. It is flawed Paul. But of course it does serve Donuts’ cause. Kudos to you for figuring out how to work around this entire process and AGB to your advantage but certainly I do not believe it is in the global public interest since the direction of the Program favors a few players who will “own” the most semantic/valuable piece of real estate on the Internet. I guess money talks and the Internet is for sale after all.
      My 2 cents.

      Reply
  5. Tyler Durden says:
    August 20, 2013 at 10:14 pm

    The expert testimony from Dr. Wright & Dr. Golovina in the AC Webconnecting case was quite thorough and persuasive. It probably influenced panelist Murray Smith in both his decisions. Notably, the expert opinions of consumer psychologist & anthropologist (Dr. Wright & Dr. Golovina) were not utilized in the Demand Media case.

    Reply

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