Consideration of Request for Cancellation of HOTEL Top-Level Domain S.a.r.l's (HTLD's) Application for .HOTEL

HTLD and the .HOTEL Claimants each applied for .HOTEL and were all placed in a contention set. As HTLD's application was community-based, its application was invited to participate in Community Priority Evaluation (CPE) on 19 February 2014. HTLD prevailed in CPE on 11 June 2014, thereby excluding the .HOTEL Claimants from continuing through the process.

The .HOTEL Claimants have argued that Mr. Krischenowski's exploitation of the portal issue that allowed parties to access confidential information of various applicants for new gTLDs, including information of several of the .HOTEL Claimants, coupled with Mr. Krischenowski's apparent business connections to HTLD, is cause for ICANN to cancel HTLD's .HOTEL application.

ICANN's forensic investigation of the portal issue revealed that the user credentials of Mr. Krischenowski and his associates, Mr. Oliver Süme and Ms. Katrin Ohlmer, were responsible for numerous instances of suspected intentional unauthorized access to other applicants' confidential information, which occurred from March through October 2014. Mr. Krischenowski acknowledged that he accessed confidential information of other users, but denied that he acted improperly or unlawfully. Among other things, Mr. Krischenowski claimed that he did not realize the portal issue was a malfunction, and that he used the search tool in good faith. Mr. Krischenowski and his associates also certified to ICANN that they would delete or destroy all information obtained, and affirmed that they had not used and would not use the information obtained, or convey it to any third party.

With respect to claims about Mr. Krischenowski's involvement with HTLD when he accessed the confidential information, ICANN has been informed that he was not directly linked to HTLD's .HOTEL application as an authorized contact or as a shareholder, officer or director. Mr. Krischenowski was a 50% shareholder and managing director of HOTEL Top-Level-Domain GmbH, Berlin (GmbH Berlin), which was a minority (48.8%) shareholder of HTLD.

ICANN has not uncovered any evidence that: (i) the information Mr. Krischenowski may have obtained as a result of the portal issue was used to support HTLD's application for .HOTEL; or (ii) any information obtained by Mr. Krischenowski enabled HTLD's application to prevail in CPE. HTLD submitted its application in 2012, elected to participate in CPE on 19 February 2014, and prevailed in CPE on 11 June 2014. Mr. Krischenowski's first instance of unauthorized access to confidential information did not occur until early March 2014; and his searches relating to the .HOTEL Claimants did not occur until 27 March, 29 March and 11 April 2014. Therefore, even assuming that Mr. Krischenowski did obtain confidential information belonging to the .HOTEL Claimants, this would not have had any impact on the CPE process for HTLD's .HOTEL application. Specifically, whether HTLD's application met the CPE criteria was based upon the application as submitted in May 2012, or when the last documents amending the application were uploaded by HTLD on 30 August 2013 – all of which occurred before Mr. Krischenowski or his associates accessed any confidential information, which occurred from March 2014 through October 2014. In addition, there is no evidence, or claim by the .HOTEL Claimants, that the CPE Panel had any interaction at all with Mr. Krischenowski or HTLD during the CPE process, which began on 19 February 2014.

In furtherance of the Board's 10 March 2016 resolution directing ICANN's "President and CEO, or his designee(s), to complete the investigation of the issues alleged by the .HOTEL Claimants regarding the portal configuration as soon as feasible and to provide a report to the Board for consideration following the completion of that investigation" (see 10 March 2016 Board Resolutions, available at https://www.icann.org/resources/board-material/resolutions-2016-03-10-en...), ICANN informed HTLD of the .HOTEL Claimants' request that ICANN cancel HTLD's .HOTEL application, provided HTLD an opportunity to respond, and sought information from HTLD regarding its association with Mr. Krischenowski. In response, Mr. Philipp Grabensee, the now sole Managing Director of HTLD, confirmed for ICANN that at the time of the challenged conduct, Mr. Krischenowski was a 50% shareholder and managing director of GmbH Berlin, which was a minority (48.8%) shareholder of HTLD. Mr. Grabensee also confirmed that Mr. Krischenowski acted as a consultant for HTLD's application at the time it was submitted (in 2012), and that Mr. Krischenowski represented HTLD in three string confusion objections initiated by HTLD against applications by Despegar and Booking.com in 2013.

Mr. Grabensee also stated that, in accessing the proprietary information, Mr. Krischenowski did not act on HTLD's behalf or in support of its application for .HOTEL. Mr. Grabensee noted that Mr. Krischenowski did not use HTLD's Login ID, did not inform HTLD's personnel about "his action," "did not provide any of the accessed information" to HTLD or its personnel, and HTLD "personnel did not have any knowledge about Mr. Krischenowski's action, and did not consent to it or approve it."

Lastly, Mr. Grabensee noted the following recent changes to HTLD's relationship with Mr. Krischenowski: (i) the business consultancy services between HTLD and Mr. Krischenowski were terminated as of 31 December 2015; (ii) Mr. Krischenowski stepped down as a managing director of GmbH Berlin effective 18 March 2016; (iii) Mr. Krischenowski's wholly-owned company transferred its 50% shares in GmbH Berlin to Ms. Ohlmer (via her wholly-owned company); (iv) GmbH Berlin will transfer its shares in HTLD to Afilias plc; and (v) Mr. Grabensee is now the sole Managing Director of HTLD.

The Board had the opportunity to consider all of the materials submitted relating to the .HOTEL Claimants' request for cancellation of HTLD's .HOTEL application. Following consideration of all relevant information provided and for the reasons set forth in the Resolution and Rationale, the Board has determined that cancellation of HTLD's .HOTEL application is not warranted, and the .HOTEL Claimants' request is therefore denied.

The Board takes these claims seriously and the Board members have exercised independent judgment in making this decision, which it deems in the best interest of the organization and the community as a whole. The Board, however, does acknowledge that, based on the information available, Mr. Krischenowski may have taken some improper actions in relation to the portal configuration issue, and the Board is considering whether this conduct should be addressed directly with Mr. Krischenowski.

This decision has no direct financial impact on ICANN and will not impact the security, stability and resiliency of the domain name system.

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