The Board Governance Committee (BGC) of ICANN rejected two request for reconsideration (“Request”)  over two decisions by the International Centre for Dispute Resolution (“ICDR”)

One request was brought by Amazon over the decision sustaining Commercial Connect LLC’s (“Commercial Connect”) objection to Amazon’s new gTLD application for the Japanese translation of “online shopping” (“Amazon’s Applied-for String”) as being confusingly similar to Commercial Connect’s application for .SHOP (“Commercial Connect’s Applied-for String”).is an applicant for the Japanese translation of “online shopping.”

The second request was brought over Commercial Connect reconsideration request for the objection it lost to TLDH on the same string.

Although the  BGC rejected both reconsideration requests, their recommendations unbelievably were quite different in the two cases.

While Amazon raised several grounds for its reconsideration request the most interesting by far was that another ICDR Panel’s determination, finding that Top Level Domain Holdings Limited’s (“TLDH”) application for the Chinese translation of “shop” (“TLDH’s Applied-for String) is not confusingly similar to Commercial Connect’s application for .SHOP as evidence that the Panel applied the wrong standard.

“Amazon concludes that “in the impossible event” that ICANN accepts the Panel’s determination, the acceptance would “create inequitable and disparate treatment without justified cause” in violation of Article II, Section 3, of ICANN’s Bylaws.”

Of course this is of particular interest because there are other panels that come to different conclusion on the same new gTLD by the same objector.

“Based on the difference of opinions of the panel Amazon requested that ICANN disregard the Panel’s Expert Determination, and either instruct a new Panel to review Commercial Connect’s string confusion objection with the standards set forth in the Applicant Guidebook or make the necessary accommodations to allow for a “non-discriminatory application of ICANN standards, policies and procedures.”

“However the BGC said the reconsideration process does not allow it to perform a substantive review of DRSP Panel decisions; Reconsideration is for the consideration of process- or policy-related complaints”.

In the Amazon case the BGC went on to say:

“The fact that these two ICDR Panels evaluated potentially similar objections yet came to different conclusions does not mean that one Panel applied the wrong standard. “

“On a procedural level, each expert Panel generally rests its determination on the materials presented to it by the parties to that particular objection, and the objector bears the burden of proof.”

Two Panels confronting nearly identical issues could rightfully reach different determinations, based on the strength of the materials presented. While Commercial Connect was the objector in both proceedings cited by Amazon, the objections were rebutted by different applicants.

Thus, the Panels reached different determinations at least in part because the materials submitted by each applicant (Amazon and TLDH) in defense of its proposed string were different.

“The Panel therefore dismissed Commercial Connect’s objection not because it concluded that translations of essentially the same word are insufficient to cause string confusion – as Amazon suggests – but because TLDH presented convincing evidence that there was little likelihood of confusion between Commercial Connect’s Applied- for String and TLDH’s Applied-for String.

“Further, the standard guiding the Panels involves some degree of subjectivity. “

While Amazon may disagree with the Panel’s finding, Reconsideration is not available as a mechanism to re-try the substantive determination of the Panel. Amazon’s claims that the Panel applied the wrong standard are unsupported and therefore, do not support Reconsideration.

In the Amazon case the BGC  Recommendation and Conclusions said:

“Based on the foregoing, the BGC concludes that Amazon has not stated proper grounds for reconsideration, and we therefore recommend that Amazon’s Request be denied without further consideration.”

“As there is no indication that either the ICDR or the Panel violated any policy or process in accepting and sustaining Commercial Connect’s Objection, this Request should not proceed. If Amazon thinks that it has somehow been treated unfairly in the process, and the Board (through the NGPC) adopts this Recommendation, Amazon is free to ask the Ombudsman to review this matter.”

In the Commercial Connect case  the BGC “recommended that staff provide a report to the NGPC, for delivery in 30 days, setting out options for dealing with the situation raised within this Request, namely the differing outcomes of the String Confusion Objection Dispute Resolution process in similar disputes involving Amazon’s Applied-for String and TLDH’s Applied-for String. “

“In addition, the BGC suggested that the strings not proceed to contracting prior to staff’s report being produced and considered by the NGPC.

The difference in the language in the Recommendations and Conclusion section of the two decision of the BGC has pretty stark differences.

In the Amazon case the BGC tells Amazon if they don’t like the decision go the Ombudsman,  but in the Commercial Connect decision the BGC recommends that  the NGPC set out options for dealing with the situations where there are differing outcomes of the String Confusion Objection Dispute Resolution process in similar disputes and that the string not proceed to contracting until the staff report is prepared and considered by the NGPC.

Hum

Its certainly problematic that two decision issued on the same day by the same committee come to two such different recommendations, but that seems it is getting pretty par for the course in ICANN world.