Europe continues to object to .wine gTLD

The European Union is continuing to fight the proposed .wine and .vin gTLDs, even after ICANN’s Governmental Advisory Committee formally withdrew its advice on the applications.
Neelie Kroes, vice president of the European Commission, wrote to ICANN on Thursday to say that its “firm position” is:

under no circumstance can we agree having .wine and .vin and on the internet, without sufficient safeguards which efficiently protect the rights and interest of both GI [Geographic Indicator] right holders and consumers and wine and wine products

The EC believes that .wine and .vin should have special second-level protections for wine GIs — geographic indicators such as Champagne, named after the region in which it is produced.
It’s a view that has been put forward by many associations of wine producers in the EU and US for over a year. ICANN is also in receipt of letters disagreeing with the GAC from other wine producers.
The law internationally, and even in the EU, appears to be patchy on whether and how GIs are protected. They don’t generally enjoy the same uniformity of protection as trademarks.
The GAC considered the two strings in April at the Beijing meeting but failed to come to a consensus.
It wound up asking ICANN for more time and, after failing to reach agreement again in Durban this July, finally concluded last week that it was unable to find a consensus on advice.
That potentially laid the path clear for the four applications for the two strings to continue to contention resolution, contracting and eventual delegation.
However, the GAC’s all-clear arrived too late for the ICANN New gTLD Program Committee to formally consider it at its meeting last week.
According to the Kroes letter, the European Commission’s view is:

there has not been any consensus decision overruling the advice given in Beijing. We are therefore of the firm opinion that the advice provided at the GAC April meeting stands as long as there is no new consensus on the matter.

The Beijing advice, which was explicitly intended to give the GAC more time to deliberate, said that ICANN should not proceed beyond Initial Evaluation with .wine or .vin.
Kroes’ logic may or may not be consistent with the letter of the Beijing communique, but certainly not its spirit. That’s becoming an increasingly common problem with GAC advice.
It seems unlikely, however, that ICANN would put the views of one single government ahead of what the GAC as a whole has submitted as formal advice.
Her letter does not seem to have been published by ICANN yet, but you can read it in PDF format here.

Hundreds of new gTLD applicants still in GAC limbo

A little over five months after the Governmental Advisory Committee issued its controversial Beijing communique, demanding strict controls over hundreds of new gTLDs, ICANN has still not taken any action.
ICANN’s New gTLD Program Committee “accepted” a bunch of the GAC’s advice on new gTLDs during its meeting last week, but yet again punted the most crucial issue — how to handle the so-called “Category 1” strings.
In a resolution last Tuesday, published on Friday, the NGPC addressed 21 pieces of GAC advice from the July Durban meeting but took no action on the April Beijing advice.
One application was killed off as a result — Better Living Management’s bid for .thai — on geographic grounds.
Applications for .spa, .yun, .广州 (.guangzhou), and .深圳 (.shenzhen), which are all geographic strings, have been put on hold “until the agreements between the relevant parties are reached”.
Amazon’s applications for its brand in Latin and other scripts are also on hold again pending ICANN’s review of its lengthy response to the GAC’s decision to object to them in Durban.
Two applications — .date and .persiangulf — which had raised geographic concerns in Beijing have been given leave to proceed after the GAC decided not to object in Durban.
Applications for .wine, .vin, .ram and .indians appear to be safe, but it’s not 100% clear based on the NGPC’s resolution.
Category 1 strings
“Category 1” strings were those strings that the GAC deemed applicable to “Consumer Protection, Sensitive Strings, and Regulated Markets”.
The GAC wants these gTLDs, if approved, to be subject to oversight by regulatory or self-regulatory bodies and to implement strict security controls.
The Category 1 advice has been criticized by many, including members of the NGPC, for being too vague to implement and for unfairly moving the goalposts on applicants at the last minute.
In Durban, the NGPC had indicated that it was very unhappy with the Category 1 advice.
Last week, it chose to essentially ignore the Beijing communique in which the Category 1 advice was delivered, and instead “accept” the Category 1 advice from Durban, which simply stated:

The GAC will continue the dialogue with the NGPC on this issue.

The NGPC in response stated in an annex to its resolution:

The NGPC accepts this advice. The NGPC looks forward to continuing the dialogue with the GAC on this issue.

So the 500-odd applications captured by Category 1 are still in limbo, unable to sign registry contracts with ICANN, pending the outcome of these GAC-NGPC negotiations.
On the upside, it looks like ICANN is keen to get the issue resolved before ICANN’s next public meeting, which takes place in Buenos Aires in November. ICANN said:

The NGPC and staff are working with the GAC to identify a time and place for further dialogue on these items.

Community support
The NGPC also addressed the GAC’s demands relating to community support for applications. In doing so, it again deployed its tactic of “accepting” the letter of the GAC’s advice whilst plainly rejecting it in spirit.
The GAC had said in Durban:

the GAC advises the ICANN Board to consider to take better account of community views, and improve outcomes for communities, within the existing framework, independent of whether those communities have utilized ICANN’s formal community processes to date.

The GAC was basically worried about the new gTLD program not giving sufficient weight to informal objections from organizations that could be affected by applied-for strings.
The NGPC responded:

The NGPC accepts this advice. The NGPC will consider taking better account of community views and improving outcomes for communities, within the existing framework, independent of whether those communities have utilized ICANN’s formal community processes to date. The NGPC notes that in general it may not be possible to improve any outcomes for communities beyond what may result from the utilization of the AGB’s community processes while at the same time remaining within the existing framework.

In other words, due to the inclusion of the phrase “within the existing framework”, ICANN can do absolutely nothing else to address the GAC’s concerns and can still say it “accepted” the advice.
The NGPC had previously used the same tactic to avoid dealing with the GAC’s Beijing advice on giving “communities” the ability to kill off applications without going through the proper channels.

First three Community Objections decided: DotGay and Google win but Donuts loses

The International Chamber of Commerce has delivered the first three Community Objection decisions in the new gTLD program, killing off one application and saving two others.
These are the results:
.gay
The objection filed by Metroplex Republicans of Dallas, a gay political organization, against DotGay LLC has failed.
The panelist, Bernhard Schlink, decided that Metrolplex lacked standing to file the objection, stating:

while the conservative segment, with which Metroplex claims association, is a segment of the clearly delineated gay community, it is not a clearly delineated community in and of itself. That some LGBTQ people hold conservative political views and vote for conservative candidates may bring them into a statistical category, but does not make them connect, gather, interact, or do anything else together that would constitute a community, or, that would make them publicly visible as one.

It was the only objection against this .gay application, meaning it can now proceed to later stages of the new gTLD process.
.fly
The objection was filed by FairSearch.org, a coalition of companies that campaigns against Google’s dominance of online markets, against Google’s .fly application.
The application was originally for a “closed generic” registry, but Google has since stated that it has changed its mind and run .fly with an open registration policy.
FairSearch lost the objection, despite ICC panelist George Bermann giving it the benefit of the doubt multiple times during his discussion on its standing to object.
Instead, Google prevailed due to FairSearch’s failure to demonstrate enough opposition to its application, with Bermann writing:

A showing of substantial opposition to an application is critical to a successful Objection. Such a showing is absent here.

He also decided that Google presented a better case when it came to arguing whether or not its .fly would be damaging to the community in question.
.architect
Finally, Donuts has lost its application for .architect, due to an objection by the International Union of Architects, which supports Starting Dot’s competing application for .archi.
Donuts had argued that UIA did not have standing to object because an “architect” does not always mean the kind of architect that designs buildings, which is the community the UIA represents. It could mean a software architect or landscape architects, for example.
But panelist Andreas Reiner found that even if the UIA represents a subset of the overall “architect” community, that subset was still substantial enough, still a community, and still represented by the string “architect”, so that it did have the standing to use the Community Objection.
It also did not matter that the UIA does not represent all the “structural architects” in the world, the panelist found. It represents enough of them that its opposition to .architect passes the “substantial” test.
He eventually took the word “architect” in its most common use — people who design buildings — in determining whether the UIA was closely associated with the community in question.
On the question of whether architects would be harmed by Donuts’ plan for .architect, the panelist noted that architects are always licensed for public safety reasons.
Here are some extracts from his decision, which seem important:

Beyond concerns of public safety, habitat for human beings is of essential importance in society, at the human-social level, at the economic level and at the environmental level
…
it would be compatible with the above references public interests linked to the work of architects and with the related consumer protection concerns, to allow the domain name “.architect” to be used by anyone other than “architects” who, by definition, need to be licensed
…
The use of the top-level domain “.architect” by non-licenced architects is in itself an abuse. This top-level domain refers to a regulated professional service. Therefore all safeguards must be adopted to prevent its use by a non-licensed person.
…
The top-level domain “.architect” raises the legitimate expectation that the related website is the webiste of a licensed architect (or a group of licenced architects). Correct information is essential to consumers visiting websites.

Basically, Reiner trashed Donuts long-standing argument in favor of blanket open registration policies.
He noted specifically that whether to allow a gTLD to proceed might be considered a free speech question, but said that free speech often has its limits, such as in cases of consumer protection.
Worryingly, one of the pieces of evidence that the panelist considered was the Governmental Advisory Committee’s Beijing communique, which contains the GAC’s formal advice against over 500 applications.

Trademark+50 coming in October

The controversial “Trademark+50” anti-cybersquatting service for new gTLDs is set to go live October 11 or thereabouts, ICANN announced last night.
Trademark+50 is the name given to a function of the Trademark Clearinghouse that enables trademark owners to obtain protection for strings that they’ve previously won at UDRP proceedings.
The service will be limited to 50 strings per trademark, with the total number of strings only limited by the total number of trademarks submitted.
ICANN said:

Rights holders may submit these domain name labels for association with existing Clearinghouse records as early as 11 October 2013. Once previously-abused labels have been verified, they will be integrated into the Trademark Claims service. ICANN expects this to occur by 18 October 2013, ahead of the earliest anticipated new gTLD Claims period.

In July at ICANN’s meeting in Durban, an IBM rep said that a Trademark+50 launch would be “difficult to reach before the middle of September”, which seems to have proven correct.
Pricing for Trademark+50, which we assume will entail a great degree of manual validation, does not appear to have been published yet.
Strings added to the IBM-run TMCH database under Trademark+50 will be eligible for Trademark Claims notifications, but not Sunrise periods, when new gTLDs launch.
Critics have repeatedly raised Trademark+50 as an example of ICANN going outside of its usual community-based policy-development processes in order to push through an unpopular mechanism.
Non-commercial users have criticized the system because it assumes that all strings won at UDRP are inherently cybersquatty, whereas the UDRP itself also requires the domain to have been used in bad faith.
Trademark owners have been able to submit their marks to the TMCH for several months, but Trademark+50 was a later addition to the new gTLD program’s rights protection mechanisms.

Government forces Nominet into ludicrous porn review

Should Nominet ban dirty words from the .uk namespace?
Obviously not, but that’s nevertheless the subject of a formal policy review announced by Nominet today, forced by pressure from the British government and the Murdoch press.
Nominet said it has hired Ken MacDonald, former director of public prosecutions, to carry out the review.
He’s tasked with recommending whether certain “offensive” words and phrases should be banned from the .uk zone.
According to Nominet, MacDonald’s qualifications include his role as a trustee of the pro-free-speech Index on Censorship and a human rights audit he carried out for the Internet Watch Foundation, the UK’s child abuse material watchdog.
Nominet said:

Lord Macdonald will work with Nominet’s policy team to conduct a series of meetings with key stakeholders, and to review and assess wider contributions from the internet community, which should be received by 4 November 2013. The goal is to deliver a report to Nominet’s board in December of this year, which will be published shortly thereafter.

You can contribute here.
The review was promised by Nominet in early August following an article in the Sunday Times, subsequently cribbed quite shamelessly by the Daily Mail, which highlighted the fact that Nominet’s policies do not ban strings suggesting extreme or illegal pornography.
You may recall a rant-and-a-half DI published at the time.
While my rant was written without the benefit of any input from Nominet — I didn’t speak to anyone there before publishing it — it appears that Nominet already had exactly the same concerns as me.
The company has published a set of lightly redacted correspondence (pdf) between itself and the Department of Culture, Media and Sport which makes for extremely illuminating reading.
In a July 23 letter to DCMS minister Ed Vaizey, Nominet CEO Lesley Cowley uses many of the same arguments — even giving the same examples — as I did a week later. She was much more polite, of course.
She points out that as a matter of principle it probably should not be left to a private company such as Nominet to determine what is and isn’t acceptable content, and that it’s difficult to tell what the content of a site will be at the point the domain is registered anyway.

In relation to the questions of practicality, the permutations of offensive words and phrases that can be created in the 63 characters of a domain name are almost limitless, so the creation of some kind of exclusion list would ultimately not prevent offensive phrases being registered as domain names. Were we to have a set of words or phrases that could not be registered, we would likely end up restricting many legitimate registrations. A good example is Scunthorpe.co.uk, which contains an offensive term within the domain name, or therapist.co.uk which could be read in more than one way.

She also points out that domains such as “childabuse.co.uk”, which may on the face of it cause concern, actually just redirect to the NSPCC, the UK’s main child abuse prevention charity.
The real eye-opening correspondence discusses the Sunday Times article that first compelled Vaizey to lean on Nominet.
As I discussed in my rant, it was based on the musings of just one guy, a purported expert in internet safety called John Carr, who once worked for the IWF and now apparently advises the government.
The examples of “offensive” domains he had supplied the Sunday Times with, I discovered, were either unregistered or contained no illegal content whatsoever.
Nominet’s correspondence contains several more .uk domains that Carr had given the newspaper, and they’re even less “offensive” than the “rape”-oriented ones it eventually published.
The domains are teens‐adult‐sex‐chat.co.uk, teendirtychat.co.uk, teens.demandadult.co.uk, teenfuckbook.co.uk and ukteencamgirls.co.uk, all of which Nominet found contained legal over-18s pornography.
One of them is even owned by Playboy.
Carr, it seems, didn’t even provide the Sunday Times or Nominet privately with any domains that suggest illegal content in the string and actually contain it in the site.
Judging by the emails between Nominet’s PR people (which, admittedly, may not be the best place to obtain an objective viewpoint) the Sunday Times reporter was “not interested in the complexity of the issue” and:

has taken a very hostile stance and is broadly of the view that the internet industry is not doing enough to stop offensive (legal) content.

The Sunday Times’ downmarket sister publication, The Sun, is famous primarily for printing topless photographs of 18-year-old women (in the 1980s it was 16-year-old girls) on Page 3 every day.
The Sun, the UK’s best-selling daily, is currently resisting a valiant effort by British feminists, which I wholeheartedly support, to have Page 3 scrapped.
In other words, the level of media hypocrisy, government idiocy and registry cowardice that came together to create the MacDonald review is quite outstanding.
Still, Nominet in recent years has proven itself pretty good at making sure its independent reviews turn out the way it wants them to, so it’s looking fairly promising that this one is likely to conclude that banning rude words would be impractical and pointless.

Famous Four says that Demand Media’s .cam should be rejected

Demand Media’s application for .cam should be rejected because it lost a String Confusion Objection filed by .com registry Verisign, according to rival applicant Famous Four Media.
“The process in the applicant guidebook is now clear: AC Webconnecting and dot Agency Limited proceed to resolve the contention set, and United TLD’s application cannot proceed,” chief legal officer Peter Young told DI.
dot Agency is Famous Four’s applicant for .cam, which along with AC Webconnecting survived identical challenges filed by Verisign. United TLD is the applicant subsidiary of Demand Media.
Serious questions were raised about the SCO process after two International Centre for Dispute Resolution panelists reached opposition conclusions in the three .cam/.com cases last month.
Demand Media subsequently called for an ICANN investigation into the process, with vice president Statton Hammock writing:

String confusion objections are meant to be applicant agnostic and have nothing to do with the registration or use of the new gTLD.

However, Famous Four thinks it has found a gotcha in a letter (pdf) written by a lawyer representing Demand which opposed consolidation of the three .cam cases, which stated:

Consolidation has the potential to prejudice the Applicants if all Applicants’ arguments are evaluated collectively, without regard to each Applicant’s unique plan for the .cam gTLD and their arguments articulating why such plans would not cause confusion.

In other words, Demand argued that the proposed usage of the TLD should be taken into account before the ICDR panel ruled against it, and now it saying usage should not have been taken into account.
Famous Four’s Young said:

Whether or not one ascribes to the view that usage should not be taken into account, and we believe that it should (otherwise we would not have argued it), the fact is that United TLD were very explicit prior to the publication that usage should indeed be taken into account.

The SCO debate expanded yesterday when the GNSO Council spent some time discussing .cam and other SCO discrepancies during its regular monthly meeting.
Concerns are such that the Council intends to inform the ICANN board of directors and its New gTLD Program Committee that it is looking into the issue.
The NGPC, has “Update on String Similarity” on its agenda for a meeting on Tuesday, which will no doubt try to figure out what, if anything, needs to be done.

No, ICANN isn’t moving to Switzerland

There’s a rumor going around this morning that ICANN is planning to up sticks from its US base in California and become subject to Swiss jurisdiction instead.
While this would be a huge change for ICANN, which has been tethered to the US government since its formation in 1998, it’s almost certainly not what’s happening.
The rumor emerged following CEO Fadi Chehade’s speech at the Asia Pacific Regional Internet Governance Forum in Korea yesterday, during which he talked about setting up a “legal structure” in Switzerland.
Addressing long-standing criticisms that ICANN is too US-centric, he discussed the recent creation of “hub” offices in Istanbul and Singapore, then said:

You heard me announce recently in Durban that ICANN, for the first time, is setting up a legal structure in Switzerland. That means that ICANN is going to seek to become an international organization that is serving the world, not just as a private corporation in California. These are important fundamental steps that we are exploring in order for ICANN to take a new global posture.

That ICANN wants a Swiss presence is not news. At the Durban meeting in July Chehade said publicly that ICANN had opened an “engagement center” in Geneva, headed by his senior adviser Tarek Kamel.
But the version of the Chehade quote doing the rounds on mailing lists today capitalizes “International Organization”, which arguably changes the meaning and makes his remarks seem more profound.
A capitalized “International Organization” can mean one of two legal structures: either an International Non-Governmental Organization or an Intergovernmental Organization.
That would, indeed, imply a change of jurisdiction. ICANN is currently, legally, a California non-profit corporation.
However, if Chehade just said “international organization” with no implied upper-case letters, it just means it’s an organization with offices and legal entities internationally.
I think this is closer to the truth, and so do People In A Position To Know whom I’ve run this by this morning.
It’s important to note that ICANN’s Affirmation of Commitments with the US government forces it to stay headquartered in the US:

ICANN affirms its commitments to: … remain a not for profit corporation, headquartered in the United States of America with offices around the world to meet the needs of a global community;

While Chehade has expansionist plans on a scale beyond any of his predecessors, it seems unlikely that these include breaking the AoC, incurring the wrath of the US government.
UPDATE: ICANN has provided DI with the following statement:

ICANN is not currently planning to set up a headquarters office in Switzerland. We will have an engagement center in Geneva, along with others scattered around the world but our three main hubs, as Fadi has previously announced, will be in L.A., Istanbul and Singapore.

Economist replaces de La Chapelle on ICANN board

ICANN’s board of directors is to see one new member in November, with economist Bruno Lanvin replacing former French civil servant Bertrand de La Chapelle.
The changes were among several appointments announced by ICANN’s Nominating Committee yesterday.
NomCom has decided to keep previous appointees Cherine Chalaby, who’s head of the New gTLD Program Committee, and Erika Mann, the former MEP who now runs Facebook’s Brussels office.
Lanvin is currently executive director of the European Competitiveness Initiative and the Global Indices projects at INSEAD, a business school, but he spent 20 years of his career with the United Nations.
Outgoing director de La Chapelle was France’s Governmental Advisory Committee representative before his appointment to the board in 2010. He, Mann and Chalaby have initial three-year terms ending in November.
It’s not known if de La Chapelle, one of ICANN’s most vocal and active directors, had nominated himself for a second term.

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

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.

Google beats Donuts in objection — .pet and .pets ARE confusingly similar

Google has won a String Confusion Objection against rival new gTLD applicant Donuts, potentially forcing .pet and .pets into the same contention set.
The shock ruling by International Centre for Dispute Resolution panelist Richard Page goes against previous decisions finding singulars and plurals not confusingly similar.
In the 11-page decision, Page said he decided to not consider the reams of UDRP precedent or US trademark law submitted by the two companies, and seems to have come to his opinion based on a few simple facts:

Objector has come forward with the following evidence for visual, aural and meaning similarity. Visually, the words are identical but for the mere addition of the letter “s”. Aurally, the word “pets” is essentially phonetically equivalent to the word “pet”. The term “pet” is pronounced as it is spelled, “pet”. The term “pets” is likewise pronounced as “pets” in essentially a phonetically equivalent fashion. The terms each have only one syllable, and they have the same stress pattern, with primary accent on the initial “pe” portion of the words. In commercial meaning, the terms show no material difference. As English nouns, “pets” is the pluralization of “pet”.
The visual similarity and algorithmic score are high, the aural similarity is high, the meaning similarity is high. Objector has met its burden of proof. The cumulative impact of these factors is such that the Expert determines that the delegation of <.pet> gTLD and the <.pets> gTLD into the root zone will cause a probability of confusion.

Page did take into account the similarity score provided by the Sword algorithm — for .pet and .pets it’s actually a fairly weak 72% — in his thinking on visual similarity.
But he specifically rejected Donuts’ defense that co-existence of plurals at the second level was proof that plural/singular gTLDs could also co-exist at the top-level, saying:

The rapid historical development of the Internet and the proliferation of domain names over the past two decades has taken place without the application of the string confusion standard now established for gTLDs. Therefore, the Expert has not considered the current coexistence of pluralized second-level TLDs or similarities between country code TLDs and existing gTLDs in the application of the string confusion standard in this proceeding.

Can: open. Worms: everywhere.
The decision stands in stark contrast to the decision (pdf) of Bruce Belding in the .hotel v .hotels case, in which it was found that the two strings were “sufficiently visually and audibly different”.
Likewise, the panelist in .car v .cars (pdf) found that Google had not met the high evidential bar to proving the “probability” rather than mere “possibility” of confusion.
One has to assume that the evidence Google submitted in .car is fairly similar to the evidence it submitted in .pets.
Are String Confusion Objections just a crap shoot, the outcome depending on which panelist you get? It’s probably too early to say for sure, but it’s looking like a possibility.
The big test will come with the next .pets decision. Afilias, the other .pet applicant, has also filed an SCO against Donuts over its .pets bid.
What if the panel in the Afilias case goes the other way? Will Donuts be in a contention set with Google and Afilias or won’t it?
I asked Akram Atallah, president of ICANN’s Generic Domains Division, about this yesterday and he said that ICANN basically doesn’t know, and that it might have to refer back to the community for advice.
Read the Atallah interview here and the .pets decision (pdf) here.