Consideration of Independent Review Panel’s Final Declaration in Vistaprint v. ICANN

Vistaprint filed a request for an Independent Review Process (IRP) challenging ICANN’s acceptance of the String Confusion Objection (SCO) Expert Determination that found Vistaprint’s applications for .WEBS to be confusingly similar to Web.com’s application for .WEB (Expert Determination). In doing so, among other things Vistaprint challenged procedures, implementation of procedures, and ICANN’s purported failure to correct the allegedly improperly issued Expert Determination.

On 9 October 2015, the three-member IRP Panel (Panel) 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/vistaprint-v-icann-final-dec....

The Panel found that it was charged with “objectively” determining, whether the Board’s actions are inconsistent with the Articles of Incorporation (Articles), Bylaws, and new gTLD Applicant Guidebook (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. (See Final Declaration at ¶¶ 125, 125, 127.)

Using the applicable standard of review, the Panel found that: (1) ICANN is the prevailing party in this Vistaprint Limited v. ICANN IRP; and (2) the Board (including the Board Governance Committee (BGC)) did not violate the Articles, Bylaws, or Guidebook. (See id. at ¶¶ 156, 157, 196.)

More specifically, the Panel found that while the Guidebook permits the Board to individually consider new gTLD applications, the Board has no affirmative duty to do so in each and every case, sua sponte. (See id. at ¶ 156.) The Panel further found that the Board’s adoption and implementation of the specific elements of the New gTLD Program and Guidebook, including the string confusion objection (SCO) process, does not violate ICANN’s Articles or Bylaws. (See id. at ¶¶ 171, 172.) The Panel also found that the time for challenging the Guidebook’s standard for evaluating SCOs has passed. (See id. at ¶ 172.) The Panel also concluded that the lack of an appeal mechanism to contest the merits of Vistaprint’s SCO Expert Determination is not a violation of ICANN’s Articles or Bylaws. (See id. at ¶ 174.)

Vistaprint also claimed that ICANN discriminated against Vistaprint through the Board’s (and the BGC’s) acceptance of the Vistaprint Expert Determination while: (i) allegedly allowing other gTLD applications with equally serious string similarity concerns to proceed to delegation; or (ii) permitting other applications that were subject to an adverse SCO determination to go through an additional review process. In response to this disparate treatment claim, the Panel found that

due to the timing and scope of Vistaprint’s Reconsideration Request (and this IRP proceeding), and the time of ICANN’s consultation process and subsequent NGPC resolution authorizing an additional review mechanism for certain gTLD applications that were the subject of adverse SCO decisions, the ICANN Board had not had the opportunity to exercise its judgment on the question of whether, in view of ICANN’s Bylaw concerning non-discriminatory treatment and based on the particular circumstances and developments noted [in the Final Declaration], such an additional review mechanism is appropriate following the SCO expert determination involving Vistaprint’s .WEBS applications. Accordingly, it follows that in response to Vistaprint’s contentions of disparate treatment in this IRP, ICANN’s Board –and not this Panel—should exercise its independent judgment of this issue, in the of the foregoing considerations [set forth in the Final Declaration].
(Id. at ¶ 191.) It should be noted, however, that while declaring that it did not have the authority to require ICANN to reject the Expert Determination and to allow Vistaprint’s applications to proceed on their merits, or in the alternative, to require a three-member re-evaluation of the Vistaprint SCO objections, the Panel recommended that

the Board exercise its judgment on the questions of whether an additional review mechanism is appropriate to re-evaluate the [expert] determination in the Vistaprint SCO, in view of ICANN’s Bylaws concerning core values and non-discriminatory treatment, and based on the particular circumstances and developments noted in this Declaration, including (i) the Vistaprint SCO determination involving Vistaprint’s .WEBS applications; (ii) the Board’s (and NGPC’s) resolutions on singular and plural gTLDs, and (iii) the Board’s decisions to delegate numerous other singular/plural versions of the same gTLD strings.
(Id. at ¶ 196.)

The Board acknowledges and accepts the foregoing recommendation by the IRP Panel. The Board will consider this recommendation at its next meeting, to the extent feasible. Further, ICANN will take the lessons learned from this IRP and apply it towards its ongoing assessments of the New gTLD Program, particularly as it relates to SCO proceedings, as applicable.

This action will have a positive financial impact on the organization as ICANN was deemed to be the prevailing party and therefore subject to partial reimbursement of some costs from Vistaprint. This action will have no direct impact on the security, stability or resiliency of the domain name system.

This is an Organizational Administrative function that does not require public comment.