Reconsideration Request 13-5, Booking.com B.V.

ICANN’s Bylaws call for the Board Governance Committee to evaluate and make recommendations to the Board with respect to Reconsideration Requests.  See Article IV, section 3 of the Bylaws.  The New gTLD Program Committee (“NGPC”), bestowed with the powers of the Board in this instance, has reviewed and thoroughly considered the BGC Recommendation on Reconsideration Request 13-5 and finds the analysis sound.

Having a reconsideration process whereby the BGC reviews and, if it chooses, makes a recommendation to the Board/NGPC for approval positively affects ICANN’s transparency and accountability.  It provides an avenue for the community to ensure that staff and the Board are acting in accordance with ICANN's policies, Bylaws, and Articles of Incorporation.

The Request seeks a reversal of the 26 February 2013 decision of the String Similarity Review Panel (the “Panel”) to place Booking.com’s application for .hotels in the same contention set as .hoteis.  Specifically, Booking.com asserted that its applied for string of .hotels can co-exist in the root zone with the applied for string .hoteis without concern of confusability, and therefore, .hotels should not have been placed in the same contention set with .hoteis.

The Request calls into consideration: (1) whether the Panel violated any policy or process in conducting its visual similarity review of Booking.com’s application; and (2) whether the NGPC has the ability to overturn the Panel’s decision on .hotels/.hoteis on the basis that the decision was provided as an “advice to ICANN” and that ICANN made the ultimate decision to accept that advice.

The BGC noted that a similar reconsideration request was previously submitted by Booking.com on 28 March 2013 and placed on hold pending the completion of a request pursuant to ICANN’s Documentary Information Disclosure Policy.  Therefore, this Request relates back to the date of the original filing and should be evaluated under the Bylaws that were in effect from 20 December 2012 through 10 April 2013.

In consideration of the first issue, the BGC reviewed the grounds stated in the Request, including the attachments, and concluded that Booking.com failed to adequately state a Request for Reconsideration of Staff action because they failed to identify any policy or process that was violated by Staff.  The BGC noted that Booking.com does not suggest that the process for String Similarity Review set out in the Applicant Guidebook was not followed, or that ICANN staff violated any established ICANN policy in accepting the Panel’s decision to place .hotels and .hoteis in the same contention set.  Rather, Booking.com seeks to supplant what it believes the review methodology for assessing visual similarity should have been as opposed to the methodology set out in Section 2.2.1.1.2 of the Applicant Guidebook and asks that the BGC (and the Board through the New gTLD Program Committee) retry the 26 February 2013 decision based upon its proposed methodology.  The BGC concluded that this is not sufficient ground for Reconsideration because the Reconsideration process is not available as a mechanism to re-try the decisions of the evaluation panels.

With respect to Booking.com’s contention that the 26 February 2013 decision was taken without material information, such as that of Booking.com’s linguistic expert’s opinion or other “information that would refute the mistaken contention that there is likely to be consumer confusion between ‘.hotels’ and ‘.hoteis’”, the BGC concluded that there is no process in the String Similarity Review for applicants to submit additional information.  As ICANN has explained to Booking.com in response to its DIDP requests for documentation regarding the String Similarity Review, the Review was based upon the methodology in the Applicant Guidebook, supplemented by the Panel’s process documentation; the process does not allow for additional inputs.  The BGC noted that Booking.com’s disagreement as to whether the methodology should have resulted in a finding of visual similarity does not mean that ICANN (including the third party vendors performing String Similarity Review) violated any policy in reaching the decision (nor does it support a conclusion that the decision was actually wrong).

In consideration of the second issue, the BGC determined that Booking.com’s suggestion that the Board (through the NGPC) has the ability to overturn the Panel’s decision on .hotels/.hoteis because the Panel merely provided “advice to ICANN” and that ICANN made the ultimate decision to accept that advice is based upon inaccurate conclusions of the String Similarity Review process.  As such, the BGC concluded that Booking.com has not stated sufficient grounds for reconsideration.  The BGC noted that all applied for strings are reviewed the Panel according to the standards and methodology of the visual string similarity review set out in the Applicant Guidebook. The Guidebook clarifies that once contention sets are formed by the Panel, ICANN will notify the applicants and will publish results on its website.  (AGB, Section 2.2.1.1.1.)  Whether the results are transmitted as “advice” or “outcomes” or “reports”, ICANN had always made clear that it would rely on the advice of its evaluators in the initial evaluation stage of the New gTLD Program, subject to quality assurance measures.  The subsequent receipt and consideration of GAC advice on singular and plural strings does not change the established process for the development of contention sets based on visual similarity as the ICANN Board is required under the Bylaws to consider GAC Advice on issues of public policy, such as singular and plural strings.  The BGC concluded that Booking.com is actually proposing a new and different process when it suggests that ICANN should perform substantive review (instead of process testing) over the results of the String Similarity Review Panel’s outcomes prior to the finalization of contention sets.

In addition to the above, the full BGC Recommendation that can be found at http://www.icann.org/en/groups/board/governance/reconsideration/recommendation-booking-01aug13-en.pdf and that is attached to the Reference Materials to the Board Submission supporting this resolution, shall also be deemed a part of this Rationale.

Adopting the BGC's recommendation has no financial impact on ICANN and will not negatively impact the systemic security, stability and resiliency of the domain name system.

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