There’s an old joke that only two economists in the entire world actually know what they are talking about – and that they disagree! Apparently something similar holds true for ICANN string confusion experts. Except rather than being asked to prescribe the best policy mix or project the future performance of highly complex economic systems, they are simply being asked to determine whether one proposed new gTLD is confusingly similar to another proposed or existing gTLD, with few relevant facts to consider beyond the strings themselves.
So far, one expert has determined – twice – that the proposed .Cam is not confusingly similar to the gold standard of gTLDs, .Com. But another expert has just found the opposite to be true. We have no official position on the correct answer, but logic tells us that there can be only one. We find considerable merit in the reaction of the counsel to the losing .Cam applicant, who wrote this in reaction:
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.
Let’s take another matter on which the “experts” employed by the International Center for Dispute Resolution (ICDR) appear to be confused. That is the very elementary question of whether the singular and plural of the same word, differentiated only by the absence or presence of an “s” at the end, are confusingly similar. Confusion was only possible, not probable, in the case of .car and .cars, declared one expert who decided the two should peacefully coexist. But the opposite result was reached in .pet versus .pets. We can discern no significant factual difference or applicable principles that justify the different results. Again, we have no official view on the right answer – other than that, absent some overwhelming factual distinctions, there can only be one correct answer for all of these cases.
“I agree with you that it’s an issue to actually allow two panels to review the same thing, but that’s how the objection process was designed in the Guidebook and we’d just have to figure out a way to handle exceptions,” Atallah said.
“If we do get a case where we have a situation where a singular and a plural string — or any two strings actually — are found to be similar, the best outcome might be to go back to the GNSO or to the community and get their read on that,” he said. “That might be what the board might request us to do.”
“There are lots of different ways to figure out a solution to the problem, it just depends on how big the problem will be and if it points to an unclear policy or an unclear implementation,” he said.
But Atallah was clear that if one singular string is ruled confusing to the plural version of the same string, that panel’s decision would not cause all plurals and singulars to go into contention.
“If a panel decides there is similarity between two strings and another panel said there is not, it will be for that string in particular, it would not be in general, it would not affect anything else,” he said.
While we appreciate his recognition of the problem, it is unclear how
the proposed resolution processes would be applied to expert decisions that have already been made. Going back to the GNSO or the community at this late stage would be a contentious process, especially since many of the participants have conflicts of interest in regard to any such “appeal” of expert decisions. As for the Board, it told the GAC in Durban last month that it would not reverse the decision of other experts that the singular and plural of the same words were not confusingly similar – yet that did not deter the expert in the .pet/.pets dispute. And, while technically true that one singular/plural decision has no impact on another, the lack of a consistent principle on this question undermines the credibility of the entire process.
The problem here is that ICANN, seeking to finally launch the new gTLD program, rushed to depend on the technocratic prowess of outside experts rather than seeking to think through the process thoroughly and establish some clear guiding principles to guide the decisions of those experts. The two page Memorandum of Understanding between ICANN and the ICDR simply instructs the ICDR to establish Procedures and Rules for this objection process but says nothing about their substance. ICDR’s fees for each objection are not insubstantial, totaling $13,000 each for both objector and applicant in cases that result in a hearing, with the expert’s travel expenses on top of that. That seems a bit pricey for a process that is starting to appear as predictable as a coin toss. But perhaps the profit motive is the way out of this conundrum – ICDR might simply ask ICANN’s permission to establish an official appeals procedure by which yet more experts can resolve the conflicting decisions of the other experts.
Domain registrants have long regarded UDRP adjudications as something of a crap shoot, especially since prior decisions are not binding precedent, so we aren’t that surprised to see similar results at the top level of the DNS. While we are still waiting on even the initiation of UDRP reform we suspect that ICANN may respond more quickly to this state of confusion, since it is in the spotlight and might well trigger litigation.
In closing, we note that John Adams once defended the Constitutional republic on the grounds that it constituted “government of laws and not of men”. In contrast, this particular ICANN objection process gets harder to defend the more it appears to be adjudication by experts in the absence of governing principles.
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