Reconsideration Request 15-7

Brief Summary
Requester Booking.com B.V. ("Booking.com") submitted a standard application for .hotels, and Requester Travel Reservations SRL ("TRS") submitted a standard application for .hoteis (collectively, the "Applications"). On 26 February 2013, pursuant to a process called string similarity review ("SSR"), an expert string similarity review panel ("SSR Panel") determined that the .hotels and .hoteis strings were visually confusingly similar. Pursuant to applicable procedure, the Applications were then placed into a contention set.

Requester Booking.com challenged the establishment of the contention set in a prior reconsideration request (Reconsideration Request 13-5), which was denied on 10 September 2013. Booking.com then initiated an Independent Review Process ("IRP") on 18 March 2014, challenging the denial of Reconsideration Request 13-5 and ICANN's adoption of the SSR Panel's determination that the .hotels and .hoteis strings were visually confusingly similar. In its Final Declaration, the Booking.com IRP Panel unanimously rejected Booking.com's claims, determining that Booking.com's challenge to the decision of an independent evaluator did not challenge Board action and, moreover, that the ICANN Board had no obligation to review or otherwise intervene in the conclusions reached by third-party expert evaluators. At its 26 April 2015 meeting, the ICANN Board approved Resolutions 2015.4.04.26.14, 2015.4.04.26.15, and 2015.04.26.16 ("Resolutions"), thereby adopting the findings contained in the Booking.com v. ICANN, ICDR Case No. 50-20-1400-0247, Final Declaration and directing the President and CEO, or his designee(s), to move forward with processing the contention set.

On 13 May 2015, the Requesters filed the instant Reconsideration Request 15-7, seeking reconsideration of ICANN's approval of the Resolutions. The Requesters argue that reconsideration is warranted because, in approving the Resolutions, the Board: (a) contravened certain of ICANN's "goals" or core values; (b) failed to consider material information; (c) relied on inaccurate information; and (d) violated unspecified provisions of ICANN's Articles of Incorporation, Bylaws, and Affirmation of Commitments.

At its core, Request 15-7 is an attempt to appeal (only) those portions of the Booking.com Final Declaration with which the Requesters disagree. The Requesters' claims do not support reconsideration because they do not establish that the Board failed to consider material information, or considered false or inaccurate material information, in approving the Resolutions. Moreover, the Requester has not demonstrated that it has been materially adversely affected by the adoption of the Resolutions. Accordingly, the BGC recommends that Request 15-7 be denied.

Facts
The BGC Recommendation on Reconsideration Request 15-7, 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 15-7 is available at https://www.icann.org/resources/pages/reconsideration-15-7-booking-bv-tr..., and is attached as Exhibit B to the Reference Materials.

Issues
In view of the claims set forth in Request 15-7, the issues for reconsideration seem to be:

Whether reconsideration is warranted because:
The approval of the Resolutions purportedly contravened what the Requesters contend are ICANN's "goals of increasing competition" and "making the domain name system more global and understandable through the use of local languages" (Request § 7, Pg. 3);
The Board failed to consider material information in approving the Resolutions;
The Board relied on false or inaccurate information in approving the Resolutions; or
The Resolutions violate unspecified provisions of ICANN's Articles of Incorporation, Bylaws, and Affirmation of Commitments; and
Whether the Requesters have demonstrated that they have suffered material adverse harm due to the approval of the Resolutions.
The Relevant Standards for Evaluating Reconsideration Requests
The BGC Recommendation on Reconsideration Request 15-7, which sets forth the Relevant Standards for Evaluating Reconsideration Requests, is hereby incorporated by reference and shall be deemed a part of this Rationale. The BGC Recommendation on Reconsideration Request 15-7 is available at https://www.icann.org/resources/pages/reconsideration-15-7-booking-bv-tr..., and is attached as Exhibit B to the Reference Materials.

Analysis and Rationale
Request 15-7 again challenges the merits of the SSR Panel's determination that the .hotels and .hoteis strings are visually confusingly similar, which resulted in the formation of the .hotels/.hoteis contention set. Booking.com sought to challenge the SSR Panel's decision in Reconsideration Request 13-5 and was unsuccessful. Booking.com tried again in its IRP and was unsuccessful. Now having banded together with contention-set mate and fellow Requester TRS, Booking.com seeks to use the instant Reconsideration Request 15-7 to appeal the Booking.com Final Declaration. Here too, the effort to undermine the SSR Panel's determination is unsuccessful. There is no appeals mechanism to challenge the substance of an expert SSR Panel determination in ICANN's Articles of Incorporation ("Articles"), Bylaws or the Applicant Guidebook.

The Board notes that the IRP Panel encouraged ICANN, ". . . in the exercise of its authority under Section 5.1 (Module 5-4) of the Guidebook (which it may choose to exercise at any time, in its discretion) to consider whether, notwithstanding the result of the string similarity review of .hotels and .hoteis, approval of both of Booking.com's and Despegar's proposed strings would be in the best interest of the Internet community." (See https://www.icann.org/en/system/files/files/final-declaration-03mar15-en... at paragraph 154.) The Board specifically chose to exercise its discretion, considered the IRP Panel's suggestion above, and chose to rely on the experts who determined these two strings should not co-exist in the domain name system Specifically, in adopting the Guidebook, the Board put the SSR process in place so the experts could decide, in the best interest of the Internet community, what strings should not co-exist in the domain name system because they could cause user confusion The Board relied on the experts to make the determination that it was in the best interest of the Internet community that .hotels and .hoteis should not co-exist in the domain name system; The Board chose not to second guess the experts.

Reconsideration of a Board action, the process that Requesters have invoked here, is warranted only where the Board took action without consideration of material information or with reliance upon false or inaccurate information. Here, as the BGC explains in detail in its Recommendation, the Board did not fail to consider material information and did not consider false or inaccurate information in approving the Resolutions. Moreover, the only material adverse harm alleged by either Requester stems from the creation of the contention set, not any Board failure to consider material information or reliance upon false information related to the Resolutions. As a result, the BGC concluded and the Board agrees that reconsideration is not appropriate.

In short, the Requesters made several claims, none of which support reconsideration. First, the Requesters seem to suggest that the Board somehow failed to consider ICANN's core values in adopting the Resolutions. The Requesters, however, have not presented any facts to support such a suggestion. To the contrary, in passing the Resolutions the Board acted in a manner that was fully consistent with ICANN's core values, including those relating to the promotion of competition where "[f]easible and appropriate," and when "beneficial to the public interest." (Bylaws, Art. IV, §§ 2.5 and 2.6.)

Second, the Requesters challenge the SSR process in general, which itself is not a Board decision subject to reconsideration. Further, any challenge to inclusion of the SSR process in the Guidebook is long since time-barred.

Third, the Requesters claim that the Board failed in the following four ways to consider material information in passing the Resolutions: (i) the Board disregarded its discretion to improve the New gTLD Program; (ii) ICANN ignored their requests to discuss their issue; (iii) the Board should have first considered the Requesters' expert report; and (iv) the Board did not consider that it had previously intervened in other decisions. None of these claims withstand scrutiny. As to the first point, the Requesters concede that the Board had discretion to take action. Discretion means that the Board is not required to intervene. In fact, they used their discretion to specifically not intervene and this in no way constitutes a failure to consider material information. As to the second point, among other reasons set forth by the BGC, the staff's decision not to engage in unspecified informal talks with the Requesters does not relate to what information the Board did or did not consider in passing the Resolutions. The Board considered the entirety of the IRP Panel's Declaration, and took the actions specified in the Resolutions. As to the third point, the Requesters' claim that the Board should have considered evidence that Booking.com presented to the IRP Panel shows that Reconsideration Request 15-7 is just an attempt to appeal the merits of the IRP Panel's decision and another of several attempts to appeal the SSR Panel's determination. Finally, as the Booking.com IRP Panel explained, "the fact that the ICANN Board enjoys [the] discretion [to individually consider an application for a New gTLD] and may choose to exercise it at any time does not mean that it is bound to exercise it, let alone at the time and in the manner demanded by [claimant]. (See Booking.com Final Determination ¶ 138.) Furthermore, the fact that the Board may have done that in the past is not material information relevant to the Requesters' circumstances.

Fourth, the Requesters argue that because the Booking.com IRP Panel was "wrong" in finding that Booking.com's challenges to the SSR process as a whole were time-barred, the Board therefore relied upon false or inaccurate information in approving the Resolutions insofar as they accepted that finding. However, the Requesters' claim is nothing more than an attempt to re-argue the question of whether its IRP claim was time-barred, and does not present any grounds for reconsideration. Simply because the Requesters do not agree with the IRP Panel's Declaration, does not make it false or inaccurate.

In addition to the above claims, the only material adverse harm alleged by either Requester stems from the creation of the contention set, not any Board failure to consider material information or reliance upon false information related to the Resolutions. Accordingly, reconsideration is not appropriate.

The full BGC Recommendation on Reconsideration Request 15-7, which sets forth the Analysis and Rationale in detail and with which the Board agrees, is hereby incorporated by reference and shall be deemed a part of this Rationale. The BGC Recommendation on Reconsideration Request 15-7 is available at https://www.icann.org/resources/pages/reconsideration-15-7-booking-bv-tr..., and is attached as Exhibit B to the Reference Materials.

Decision
The Board had the opportunity to consider all of the materials submitted by or on behalf of the Requesters or that otherwise relate to Reconsideration Request 15-7, including the Requesters' letter date 16 July 2015, after the BGC made its recommendation. Following consideration of all relevant information provided, the Board reviewed and has adopted the BGC's Recommendation on Reconsideration Request 15-7 (https://www.icann.org/en/system/files/files/recommendation-15-7-booking-...), which shall be deemed a part of this Rationale and is attached as Exhibit B to the Reference Materials to the Board Paper on this matter.

Adopting the BGC's recommendation has no direct 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.