Reconsideration Request 15-13: Commercial Connect, LLC

I. Brief Summary

The Requester submitted a community-based application for the .SHOP gTLD ("Application"). The Requester's Application was placed into a contention set with eight other applications for .SHOP, two applications for .SHOPPING, and one application for .通販 (Japanese for "online shopping") (".SHOP/SHOPPING Contention Set"). Since the Requester's Application is community-based, the Requester was invited to, and did, participate in CPE. The Application did not prevail in CPE. As a result, the Application was placed back into the contention set.

The Requester claims that the CPE panel considering its Application ("CPE Panel"): (i) violated established policy or procedure in its consideration of the expressions of support for and opposition to the Requester's Application; and (ii) improperly applied the CPE criteria. The Requester also challenges various procedures governing the New gTLD Program including, among other things, the String Similarity Review process and the adjudication of various string confusion objections, which ultimately resulted in the composition of the .SHOP/.SHOPPING Contention Set.

The Requester's claims are unsupported. First, all of the issues raised by the Requester are time-barred. Second, as to the Requester's challenge to the CPE Report, the Requester has not demonstrated that the CPE Panel acted in contravention of any established policy or procedure in rendering the CPE Report. The CPE Panel evaluated and applied the CPE criteria in accordance with all applicable policies and procedures, including but not limited to its consideration of the expressions of support for and opposition to the Requester's Application. The Requester presents only its substantive disagreement with the CPE Report, which is not a basis for reconsideration. Similarly, the Requester has not demonstrated a basis for reconsideration with respect to the other issues it raises regarding: (a) the procedures set forth in the Guidebook; (b) the outcome of the String Similarity Review; and (c) the outcome of its string confusion objections. The BGC therefore recommends that Request 15-13 be denied.

II. Facts

The BGC Recommendation on Reconsideration Request 15-13, which sets forth in detail the facts relevant to this matter, is hereby incorporated by reference and shall be deemed a part of this Rationale. The BGC Recommendation on Reconsideration Request 15-13 is available at https://www.icann.org/en/system/files/files/determination-15-13-commerci... [PDF, 241 KB], and is attached as Exhibit B to the Reference Materials.

III. Issues

In view of the claims set forth in Request 15-13, the issues for reconsideration seem to be: (1) whether the CPE Panel violated established policy or procedure by failing to properly apply the CPE criteria in evaluating the Requester's Application; (2) whether the Board failed to consider material information or relied on false or inaccurate material information before approving the New gTLD Program and the Guidebook, specifically the application review procedures set forth in the Guidebook; and (3) whether the third-party experts that ruled on the Requester's 21 string confusion objections violated any established policy or procedure in rendering their determinations.

IV. The Relevant Standards for Evaluating Reconsideration Requests

The BGC Recommendation on Reconsideration Request 15-13, which sets forth the relevant standards for evaluating reconsideration requests and CPE, is hereby incorporated by reference and shall be deemed a part of this Rationale. The BGC Recommendation on Reconsideration Request 15-13 is available at https://www.icann.org/en/system/files/files/determination-15-13-commerci... [PDF, 241 KB], and is attached as Exhibit B to the Reference Materials.

V. Analysis and Rationale

The Requester challenges the "correctness" of the CPE Report, as well as various procedures governing the New gTLD Program, the String Similarity Review process and the adjudication of various string confusion objections, which ultimately resulted in the contention set for the Requester's Application. As the BGC explains in detail in its Recommendation, all of the issues raised by the Requester are time-barred. Further, insofar as the Requester is challenging the CPE Report, the Requester has not demonstrated any misapplication of any policy or procedure by the CPE Panel in rendering the CPE Report. The Requester instead only presents its substantive disagreement with the scoring and analysis in the CPE Report, which is not a basis for reconsideration.

Similarly, the Requester has not demonstrated a basis for reconsideration with respect to the other issues it raises regarding the procedures set forth in the Guidebook or the processing of its Application. The Requester argues, among other things, that: (a) CPE should not be required at all; (b) the Guidebook improperly fails to provide an appeals mechanism for CPE panel determinations; and (c) the Guidebook does not conform to the recommendations of ICANN's Generic Names Supporting Organization ("GNSO"). As discussed above, any challenge to the procedures set forth in the Guidebook are time-barred. Furthermore, in challenging the approval of the Guidebook, the Requester seeks reconsideration of Board action but does not demonstrate, as it must, that the Board either failed to consider material information or relied on false or inaccurate material information before approving the New gTLD Program and the Guidebook.

The Requester also asks that the Board "[r]eview and fix the issue with name similarity especially with any and all similar and confusing eCommerce strings." The Requester appears to claim that applications for various strings other than .SHOP should be included in the Requester's contention set because, in the Requester's view, "issuing multiple random and similar gTLDs will only yield very small registrations [on each gTLD] which in turn would make sustainability unfeasible." Although Request 15-13 is unclear, the Requester seems to make two different challenges in this respect. First, the Requester appears to challenge the Board's adoption of the String Similarity Review and string confusion objections procedures. Second, the Requester appears to challenge the actions of third-party evaluators and the Board with respect to: (1) the String Similarity Review performed for the Requester's .SHOP Application; and (2) the adjudication of the Requester's string confusion objections. Neither challenge warrants reconsideration. With respect to the Requester's first argument—not only is it long since time-barred, but the Requester has not identified any material information the Board failed to consider, or any false or inaccurate material information that the Board relied upon, in adopting the procedures governing String Similarity Review or string confusion objections. With respect to the Requester's second argument—not only is it also long since time-barred, but the Requester does not identify any policy or process violation in the String Similarity Review Panel's determination, nor has the Requester identified any violation of established policy or procedure by the third-party experts who ruled on the Requester's myriad string confusion objections.

The full BGC Recommendation on Reconsideration Request 15-13, which sets forth the analysis and rationale in detail and with which the NGPC agrees, is hereby incorporated by reference and shall be deemed a part of this Rationale. The BGC Recommendation on Reconsideration Request 15-13 is available at https://www.icann.org/en/system/files/files/determination-15-13-commerci... [PDF, 241 KB], and is attached as Exhibit B to the Reference Materials.

VI. Decision

The NGPC had the opportunity to consider all of the materials submitted by or on behalf of the Requester or that otherwise relate to Reconsideration Request 15-13. Following consideration of all relevant information provided, the NGPC reviewed and has adopted the BGC's Recommendation on Reconsideration Request 15-13 (https://www.icann.org/en/system/files/files/determination-15-13-commerci... [PDF, 241 KB]), which shall be deemed a part of this Rationale and is attached as Exhibit B to the Reference Materials to the NGPC Paper on this matter.

Adopting the BGC's recommendation 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.