The ICANN Board has rejected Booking.com request for reconsideration and thereby is allowing the Contention set of Hotels/.Hoteis to move forward to being resolved.
Basically the ICANN Board is saying sorry Booking.com we will try to do better in the next round, and fix the problems that the Independent Review Proceeding (IRP) admitted were present in the Applicant Guidebook
“The ICANN Board directs the President and CEO, or his designee(s), to ensure that the ongoing reviews of the New gTLD Program take into consideration the following issues raised by the Panel in the Final Declaration regarding transparency and fairness:
- “The Guidebook provides no means for applicants to provide evidence or make submissions to the SSP (or any other ICANN body) and to be fully “heard” on the substantive question of the similarity of their applied-for gTLD strings to others”
Booking.com must be thrilled.
By way of background:
Booking.com filed a request for an Independent Review Proceeding (IRP) challenging the ICANN Board’s handling of Booking.com’s application for .hotels, including the determination of the String Similarity Panel (SSP) to place .hotels and .hoteis in contention and the refusal of the Board to revise that determination. Booking.com also challenged the conduct of the Board in the setting up, implementation, and supervision and review of the entire string similarity review process. On 3 March 2015, the IRP Panel (Panel), comprised of three Panelists, issued its Final Declaration. After consideration and discussion, pursuant to Article IV, Section 3.21 of the ICANN Bylaws, the Board adopts the findings of the Panel, which are summarized below, and can be found in full at https://www.icann.org/en/system/files/files/final-declaration-03mar15-en.pdf [PDF, 4.76 MB].
The Panel found that it was charged with “objectively” determining, whether or not the Board’s actions are in fact consistent with the Articles, Bylaws, and Guidebook, thereby requiring that the Board’s conduct be appraised independently, and without any presumption of correctness. The Panel agreed with ICANN that in determining the consistency of the Board action with the Articles, Bylaws, and Guidebook, the Panel is neither asked to, nor allowed to, substitute its judgment for that of the Board.
Using the applicable standard of review, the Panel found that objectively there was not an inconsistency with the Articles, Bylaws and Guidebook, noting that “the established process was followed in all respects” concerning the process followed by the String Similarity Panel and the BGC’s [Board Governance Committee] handling of Booking.com’s reconsideration request.” (Final Declaration, https://www.icann.org/en/system/files/files/final-declaration-03mar15-en.pdf [PDF, 4.76 MB], at p. 41.)
Specifically, the Panel concluded:
144. Booking.com has failed to identify any instance of Board action or inaction, including any action or inaction of ICANN staff or a third party (such as ICC, acting as the SSP) that could be considered to be inconsistent with ICANN‘s Articles of Incorporation or Bylaws or with the policies and procedures established in the Guidebook. This includes the challenged actions of the Board (or any staff or third party) in relation to what Booking.com calls the implementation and supervision of the string similarity review process generally, as well as the challenged actions of the Board (or any staff or third party) in relation to the string similarity review of .hotels in particular.
145. More particularly, the Panel finds that the string similarity review performed in the case of .hotels was not inconsistent with the Articles or Bylaws or with what Booking.com refers to as the “applicable rules” as set out in the Guidebook.
146. To the extent that the Board’s adoption and implementation of specific elements of the new gTLD Program and Guidebook, including the string similarity review process, could potentially be said to be inconsistent with the principles of transparency or fairness that underlie ICANN‘s Articles and Incorporation and Bylaws (which the Panel does not say is the case), the time to challenge such action has long since passed.
Accordingly, the Panel declared ICANN to be the prevailing party.
The Panel acknowledged certain legitimate concerns regarding the string similarity review process raised by Booking.com, which concerns the Panel noted were shared by some members of the NGPC. Most notably, the IRP Panel noted that while the String Similarity Review Process, as it exists does not allow for some procedural appeal mechanism, “[a]s to whether they should be, it is not our place to express an opinion, though we note that such additional mechanisms surely would be consistent with the principles of transparency and fairness.”
The Board appreciates the IRP Panel comments with respect to ways in which the New gTLD Program processes might improve in future rounds. ICANN will take the lessons learned from this IRP and apply it towards its ongoing assessments of the ways in which it can improve upon its commitments to accountability and transparency. In particular, the Board will include the following concerns expressed by the Panel in its review of the New gTLD Program for the next round:
- “The Guidebook provides no means for applicants to provide evidence or make submissions to the SSP (or any other ICANN body) and to be fully “heard” on the substantive question of the similarity of their applied-for gTLD strings to others.”
- “[T]he process as it exists does [n]ot provide for gTLD applicants to benefit from the sort of procedural mechanisms – for example, to inform the SSP’s review, to receive reasoned determinations from the SSP, or to appeal the merits of those determinations.
Consideration of Independent Review Panel’s Final Declaration in Booking.com v. ICANN
Whereas, on 3 March 2015, an Independent Review Panel (“Panel”) issued an advisory Final Declaration in the Independent Review proceeding (“IRP”) filed by Booking.com (the “Final Declaration”).
Whereas, Booking.com specifically challenged the determination of the String Similarity Panel (“SSP”) to place .hotels and .hoteis in contention and the refusal of the Board to revise that determination, as well as the conduct of the Board in adopting and implementing the entire string similarity review process.
Whereas, the Panel denied Booking.com’s IRP request because the Panel determined that “Booking.com failed to identify any instance of Board action or inaction or ICANN staff or a third party (such as the ICC, acting as SSP), that could be considered to be inconsistent with ICANN‘s Articles of Incorporation or Bylaws or with the policies and procedures established in the Guidebook.” (https://www.icann.org/en/system/files/files/final-declaration-03mar15-en.pdf [PDF, 4.76 MB].)
Whereas, while ruling in ICANN‘s favor, the Panel expressed sympathy for Booking.com insofar as the IRP Panel suggests that there could be future improvements to the transparency of processes developed within the New gTLD Program, and the Board appreciates the IRP Panel comments with respect to ways in which the New gTLD Program processes might improve in future rounds.
Whereas, in accordance with Article IV, section 3.21 of ICANN‘s Bylaws, the Board has considered the Panel’s Final Declaration.
Resolved (2015.04.26.14), the Board accepts the following findings of the Independent Review Panel’s Final Declaration that:
(1) Booking.com has failed to identify any instance of Board action or inaction, or any action or inaction of ICANN staff or any third party (such as the ICC, acting as SSP), that could be considered to be inconsistent with ICANN‘s Articles of Incorporation or Bylaws or with the policies and procedures established in the Guidebook, including the challenged actions of the Board (or any staff or third party) in relation to what Booking.com calls the implementation and supervision of the string similarity review process generally, as well as the challenged actions of the Board (or any staff or third party) in relation to the string similarity review of resulting in the placement of .hotels and .hoteis in contention;
(2) the string similarity review performed in the case of .hotels was not inconsistent with ICANN‘s Articles of Incorporation or Bylaws or with the policies and procedures established in the Guidebook;
(3) the time to challenge the Board’s adoption and implementation of specific elements of the New gTLD Program, including the string similarity review process has long since passed; and (4) each party shall bear its own IRP costs.
Resolved (2015.04.26.15), the Board directs the President and CEO, or his designee(s), to move forward with processing of the .hotels/.hoteis contention set.
Resolved (2015.04.26.16), the Board directs the President and CEO, or his designee(s), to ensure that the ongoing reviews of the New gTLD Program take into consideration the following issues raised by the Panel in the Final Declaration regarding transparency and fairness:
- “The Guidebook provides no means for applicants to provide evidence or make submissions to the SSP (or any other ICANN body) and to be fully “heard” on the substantive question of the similarity of their applied-for gTLD strings to others.”
“[T]he process as it exists does [not] provide for
gTLD applicants to benefit from the sort of procedural mechanisms – for example, to inform the SSP’s review, to receive reasoned determinations from the SSP, or to appeal the merits of those determinations.”
Jeff Schneider says
Hello MHB,
It seems to us that ICANN seemingly thinks they can run Ruff Shod over any and all the contituants they deal with. These are Renegade Actions in our opinion. Where does the I.C.A. stand on our thoughts ,if you might speak your mind on this. JAS 4?29/15
Gratefully, Jeff Schneider (Contact Group) (Metal Tiger) (Former Rockefeller IBEC Marketing Analyst/Strategist)
Greaterpoint says
so, Despegar ( part of Decolar combr ) shouldnt operate .hoteIS because is too similar to a US company ( but established under the law of the Netherlands ), bidding on .hotELS, which is not only a different string but also a different language, and different market.
If your point is about ICANN’s neutrality -or lack of, then please, try another example, as this clearly demonstrates that ICANN has ‘an open and fair access policy’ -just look at this through the eyes of Despegar ( which is not really Uruguayan funded, btw ).
The problem, imo, with bashing ICANN every 5 minutes about the new gtlds, is that you may hurt entities that just-arrived to the internet, generating overhead on their cost. If you really ‘disagree with’ their process, why do you not interact with them rather than proselytizing. EA ( Get in touch group ) ( Wood Lion ) (dot zoo) ( Former Curling champion )
Jeff Schneider says
Hello Greaterpoint says ,
The Ad Community has never really grasped the Nuances of effective Online Marketing Strategies.
This is very evident to the REALLY SMART ONLINE Marketing Analysts/Strategists Industry of which you speak of disparingly. Do your Homework, then lets talk. JAS 4/29/15
Gratefully, Jeff Schneider (Contact Group) (Metal Tiger) (Former Rockefeller IBEC Marketing Analyst/Strategist)
Greaterpoint says
Hi Jeff,
Not quite sure whom is the Ad Community, according to you ?!
but, the art of -any publicity- by means of bashing, is well known by all these days. sharp shot any teenager carrying a smart phone, and you will see so.
it is hard to address your post, way too generic.
however, the -really smart online guru- as you wrote, would have done the homework. not sure what homework you are talking about, but on regards to the matter,
all one had to do, was point out that “Hoteis” is indeed Portuguese, but it is **misspelled**, and you would have, a better shot on having cited contention back on square zero, rather than spending a sack of money on external aid/auditing/consulting.
to me, that would have been the smart ( and way cheaper ) homework, even though I disagree both strings are visually similar. beyond, within the same context, booking.com’s external advisory crew, should have brought to the attention, the case of another string ( coincidentally in Portuguese too ),
which is very similar to .com, so similar that it clearly demonstrates how “Sword” logic ( SSP ) is flawed.
I fail to understand the rest of your comment, pardon for such. imho..
you are very welcome, for the free homework.
best,
Jeff Schneider says
Hello Greaterpoint says,
Complaining about MARKETING TRUTHS BEING VIOLATED is not BASHING its , (HONESTY) . You need to go back to the drawing boards, this is a weak reply. JAS 4/29/15
Gratefully, Jeff schneider (Contact Group) (Metal Tiger) (Former Rockefeller IBEC Marketing Analyst/Strategist)