The Board Governance Committee (BGC) of ICANN rejected two request for reconsideration (“Request”) over two decisions by the International Centre for Dispute Resolution (“ICDR”)
One request was brought by Amazon over the decision sustaining Commercial Connect LLC’s (“Commercial Connect”) objection to Amazon’s new gTLD application for the Japanese translation of “online shopping” (“Amazon’s Applied-for String”) as being confusingly similar to Commercial Connect’s application for .SHOP (“Commercial Connect’s Applied-for String”).is an applicant for the Japanese translation of “online shopping.”
The second request was brought over Commercial Connect reconsider request for the objection it lost to TLDH on the same string.
Although the BGC rejected both reconsideration requests, their recommendations unbelievably were quite different in the two cases.
While Amazon raised several grounds for its reconsideration request the most interesting by far was that another ICDR Panel’s determination, finding that Top Level Domain Holdings Limited’s (“TLDH”) application for the Chinese translation of “shop” (“TLDH’s Applied-for String) is not confusingly similar to Commercial Connect’s application for .SHOP as evidence that the Panel applied the wrong standard.
“Amazon concludes that “in the impossible event” that ICANN accepts the Panel’s determination, the acceptance would “create inequitable and disparate treatment without justified cause” in violation of Article II, Section 3, of ICANN’s Bylaws.”
Of course this is of particular interest because there are other panels that come to different conclusion on the same new gTLD by the same objector.
“Based on the difference of opinions of the panel Amazon requested that ICANN disregard the Panel’s Expert Determination, and either instruct a new Panel to review Commercial Connect’s string confusion objection with the standards set forth in the Applicant Guidebook or make the necessary accommodations to allow for a “non-discriminatory application of ICANN standards, policies and procedures.”
“However the BGC said the reconsideration process does not allow it to perform a substantive review of DRSP Panel decisions; Reconsideration is for the consideration of process- or policy-related complaints”.
In the Amazon case the BGC went on to say:
“The fact that these two ICDR Panels evaluated potentially similar objections yet came to different conclusions does not mean that one Panel applied the wrong standard. “
“On a procedural level, each expert Panel generally rests its determination on the materials presented to it by the parties to that particular objection, and the objector bears the burden of proof.”
Two Panels confronting nearly identical issues could rightfully reach different determinations, based on the strength of the materials presented.…
