ICANN Floats Narrow Plan for Reviewing Inconsistent String-Confusion Rulings
ICANN is seeking feedback on a proposed review mechanism for dealing with “perceived inconsistent expert determinations on string confusion objections [SCOs],” it said Feb. 11 (http://xrl.us/bqnape). Inconsistent resolution of similar new generic top-level domain (gTLD) string applications popped up as an issue last year, when the International Center for Dispute Resolution (ICDR) issued conflicting opinions on whether some strings were so similar that they could create user confusion if they were both delegated into the root zone (WID Nov 27 p3). ICANN’s proposal addresses only the different rulings on .cam/.com and .car/.cars, a focus one domain player criticized as too narrow and another as appropriate.
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If adopted, the review mechanism would mean a change to the SCO process in the new gTLD applicant guidebook, ICANN said. The guidebook sets out four grounds on which a formal objection can be filed against a gTLD application, one of which is string confusion, it said. If a string confusion objection is successful, it could change the configuration of the preliminary string contention sets, pitting two applied-for gTLD strings against one another. The board’s New gTLD Program Committee (NGPC) identified two sets of such perceived inconsistent expert determinations (objections raised by the same objector against different applications for the same string, where ICDR rulings differ) and asked staff for a possible review mechanism.
The proposed system is based on three principles, ICANN said: The reconsideration process won’t be modified to deal with these cases; the perceived inconsistencies should be addressed using a limited standard of review; and the applicability of the review mechanism must be limited. ICANN’s reconsideration process isn’t the way to address the substantive challenges to expert determinations, it said. While there could be broader discussion of the scope of the reconsideration process, or some other review mechanism, for a later round of gTLD requests, modifying the process won’t solve the inconsistent rulings, it said.
The proposal seeks to limit the review to .cam/.com and .car/.cars objections. It wants a standard of review that asks whether the arbitration panel could reasonably have come to its decision on the underlying string contention objection through appropriate application of the standard of review set out in the applicant guidebook and procedural rules.
ICANN proposed to ask the ICDR to set up a three-member “panel of last resort” to consider the two cases. Panel members would have to review the earlier opinions, and ICANN would accept its decision as final. The proposal sets out some anticipated process details. It also emphasizes that the review mechanism should be used only for the two cited situations and should not be open to all objections, because ICANN and applicants have already acted in reliance on NGPC resolution of the singular/plural gTLD issue and on SCO expert determinations.
The proposal gives “no clear explanation” as to why inconsistent rulings have been narrowly defined as objections raised by the same objector against different applications for the same string, where the outcomes of the SCOs differ, said Internet Commerce Association Executive Director Philip Corwin. That definition excludes situations in which different objectors raised concerns about the same string and received different expert opinions, he told us.
Corwin also questioned the proposed review standard, saying it’s unlikely to resolve anything in practice because it would require a three-member ICDR panel to find that “one of their colleagues had reached an unreasonable determination.” While it wouldn’t apply to the .com/.cam dispute, most of the other inconsistent decisions are grounded in an initial expert report saying singulars and plurals of the same string aren’t confusingly similar, a report decried by many in the domain community but accepted by the NGPC, he said. “Given that foundational document it is hard to envision how the proposed standard of review would alter the outcome for the .car/.cars situation,” he said.
United TLD Holdco, which received the inconsistent ruling on .cam, has been waiting patiently to see what ICANN planned to do about its and the .car/.cars case, said Vice President-Business and Legal Affairs Statton Hammock in an interview Wednesday. While the company is still reviewing the proposal, it agrees with ICANN that the review mechanism should be very narrow and shouldn’t be available to every applicant that didn’t win its objection, he said. “The proposal addresses a very fringe case that wasn’t conceived of by applicants” when the guidebook was written, he said. No one expected differing decisions on the same string, he said. That they occurred doesn’t reflect a flaw in the new gTLD process or review, but was just an “absurd and illogical” outcome, he said.
There were three applications for .cam, and three string confusion objections were filed by VeriSign, Hammock said. In two of the cases, the strings were found to be dissimilar, so those gTLDs are going forward. United TLD’s panelist, however, decided .com and .cam are similar. United will argue that because two .cam gTLDs are proceeding, ICANN can’t prejudice the third application, he said.
The SCO issue has nothing to do with singular/plural gTLDs, Hammock said. Nevertheless, he said, it wouldn’t be surprising if other disaffected applicants ask for any review mechanism to be extended to singular/plural applications and other cases, he said. ICANN isn’t likely to do so, he said. Comments are due March 11; as of our deadline, there was just one.