Unveiling ICANN’s Selective Justice: The String Confusion Conundrum in New gTLDs
In the complex world of internet governance, the Internet Corporation for Assigned Names and Numbers (ICANN) holds significant sway, particularly over the creation and management of top-level domain names (TLDs). The introduction of New gTLDs promised an expansion of the internet’s naming landscape, but it also brought forth a myriad of challenges, not least among them the issue of “string confusion.” Recently, ICANN has put forth a proposal aimed at addressing “perceived inconsistencies” within the String Confusion Objection (SCO) process for these new domain names. While seemingly a step towards fairness, a closer examination reveals a carefully crafted, and arguably self-serving, approach that addresses only a fraction of the broader systemic problems.
The core of ICANN’s current plan is to reconcile two specific cases where different expert panels reached contradictory conclusions regarding objections filed against identical strings: .cam versus .com, and .cars versus .car. On the surface, this appears to be a proactive measure to correct glaring errors. However, critics argue that ICANN is engaging in a strategic act of selective memory, consciously overlooking a host of other equally problematic inconsistencies that have plagued the New gTLD program since its inception. This selective approach raises fundamental questions about transparency, fairness, and the long-term integrity of ICANN’s dispute resolution mechanisms.
The Troubling Genesis of Inconsistency in New gTLDs
The journey towards widespread inconsistencies in String Confusion Objections began almost immediately after the New gTLD program commenced. A primary culprit, widely acknowledged, was the poorly articulated and often ambiguous standards outlined in the Applicant Guidebook (AGB). This foundational document, intended to provide clear guidelines for applicants and objectors alike, inadvertently created a landscape ripe for subjective interpretations. Without robust, objective criteria for assessing string similarity, decisions often devolved into matters of individual opinion, making the outcome highly dependent on the particular panelist assigned to each case.
This reliance on individual judgment led to a series of baffling and contradictory rulings. Consider the striking example of .通販 (tsuhan), a Japanese word meaning “mail order” or “online shopping,” and .shop. Despite being in entirely different scripts and languages, and not having a direct semantic overlap beyond a broad connection to commerce, one panelist deemed them too similar, leading to an objection being upheld. In stark contrast, another panelist, reviewing the Chinese translation of “shop,” .购物 (gouwù), found it not to be excessively similar to .shop. Further compounding the confusion, a separate panel determined that .hotel and .hotels, two strings differing only by a single letter representing a pluralization, were not sufficiently similar to warrant an objection. These examples underscore the chaotic and unpredictable nature of the early SCO decisions, illustrating a profound lack of consistent application of standards, or indeed, the absence of adequately defined standards themselves.
ICANN’s Strategic Rationalization: A Narrow Definition of “Inconsistent”
Faced with mounting evidence of these inconsistencies, ICANN’s response has been to craft a definition of “inconsistent” that conveniently limits the scope of its remediation efforts. By applying a meticulously strict and narrow definition, ICANN is essentially pretending that a vast majority of other, equally egregious, inconsistencies simply do not exist. This intellectual contortion allows the organization to rationalize past decisions, asserting that under their specific definition, these cases are not truly “inconsistent.”
ICANN openly admits that its reluctance to address all inconsistencies stems, in part, from the considerable time it has taken to react to the issue. The organization posits that many applicants and other parties have already made significant investments and taken actions based on previous decisions. Therefore, overturning these decisions now would be impractical and disruptive. While the practical challenges of retroactively altering numerous outcomes are undeniable, this justification rings hollow when contrasted with ICANN’s willingness to intervene in the .cam/.com and .car/.cars cases. This disparity highlights a fundamental double standard: apparently, it is too late to rectify the errors that impacted some, but perfectly acceptable to revisit decisions for others, particularly when those decisions have become particularly “embarrassing” or logistically complicated for ICANN itself.
The Amazon Saga: A Case Study in Dismissed Appeals
One of the most prominent examples illustrating ICANN’s selective approach is the reconsideration request filed by Amazon.com. Amazon had faced an adverse decision regarding its application for a specific domain, and in its appeal, it meticulously pointed out the apparent inconsistency between its case and the .购物 case, where a different applicant (TLDH) had prevailed against the same objector despite similar circumstances. Amazon’s argument was compelling: if string confusion was a concern in one instance, why not in another, seemingly analogous, situation?
It was in response to Amazon’s challenge that ICANN’s elaborate rationalization of the issue was first meticulously devised. The real, albeit awkward, truth was that these two cases, involving similar objections, were heard by different panelists, each applying their own subjective interpretation of the vague guidelines. It is widely believed that had the panelist in Amazon’s case, Robert Nau, also heard TLDH’s case, TLDH would likely have faced the same fate as Amazon. The outcome, therefore, was less a reflection of objective standards and more a consequence of the arbitrary assignment of panelists.
However, admitting this stark reality would have been highly inconvenient for ICANN. Instead, its Board Governance Committee chose a different narrative. They asserted that the divergent outcomes did not indicate a flawed standard, but rather reflected differences in the strength of materials presented by the parties. According to ICANN, “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.” They further elaborated that since Amazon and TLDH were different applicants, the materials they submitted in defense of their proposed strings were different, leading to disparate determinations. ICANN concluded that TLDH’s panel dismissal was not because translations of essentially the same word were insufficient to cause confusion, but because TLDH presented “convincing evidence” of little likelihood of confusion. This justification, while procedurally correct in its reference to burden of proof and evidence, rings hollow in the face of the substantive similarities between the cases and is arguably a convenient fabrication to deny Amazon’s request, especially when compared to how .cam/.com and .car/.cars are now being treated.
Following this decision, ICANN did ask its staff to prepare a report on inconsistencies. Predictably, the staff’s response mirrored the Board’s narrow view: inconsistencies should be addressed, but only in a highly restricted set of two specific cases.
The Chosen Few: .cam/.com and .car/.cars Under the Spotlight
ICANN’s proposal to review only two specific cases, while ignoring other obvious inconsistencies, centers on situations where a single objector filed against multiple applicants for the *same string*, and expert panels delivered conflicting decisions. But why these two, and not the many others, including Amazon’s case or the numerous singular vs. plural determinations?
The .cam/.com Controversy: A Tale of Shifting Sands
The .cam/.com case offers a particularly illuminating, and somewhat ironic, example of ICANN’s policy gymnastics. Verisign, the long-standing operator of .com, filed an objection against three different applicants for .cam. Intriguingly, Verisign lost two of these cases but prevailed against Rightside (then Demand Media). The consequence was significant: while two applicants for .cam could proceed, Rightside’s application was effectively halted, creating a stark competitive imbalance for what was fundamentally the same string.
The irony deepens when one considers Rightside’s prior stance. Before losing its case, Rightside had actually presented the *exact argument* that ICANN later used to dismiss Amazon.com’s reconsideration request. Rightside sent a letter to ICANN opposing the consolidation of the .cam cases, arguing that each applicant’s response to objections would be of varying quality and should be judged independently. However, once Rightside found itself on the losing end, presumably because its response was deemed less compelling than its competitors’, it quickly reversed course, questioning the fundamental fairness of the process. Now, under ICANN’s new proposal, Rightside will get a second chance to argue its case. This raises a critical question: why is Rightside afforded this opportunity for review and potential redress, while Amazon and numerous other applicants, who also faced what they perceived as unfair or inconsistent decisions, are explicitly denied similar consideration on the grounds that their initial responses were purportedly inadequate?
The .car/.cars Dilemma: A Contention Set Nightmare
The .car/.cars case presents another fascinating and logistically complex scenario. Google, as the applicant for .car, lodged objections against three separate applicants vying for .cars. Google succeeded in one instance, against DERcars, but lost its objections against the other two. This created an extraordinarily unusual and messy “contention set” involving all four applications. A contention set arises when multiple applications for similar or identical strings create conflicts that must be resolved, often through auctions. The critical question became: how would such a fragmented contention set be resolved in an auction of last resort?
The implications were profound and highlighted a significant oversight in ICANN’s initial planning. Would DERcars, having lost its objection, effectively be forced to win two separate auctions to secure its desired string, one against Google and another against the other .cars applicants? The complexity and potential unfairness of this situation quickly became apparent. Researching this particular issue made it abundantly clear that ICANN had not fully considered the intricate ramifications of such inconsistent objection outcomes when it drafted and published its Applicant Guidebook. This specific logistical headache likely contributed significantly to ICANN’s decision to include this case in its selective review.
The Uncomfortable Truth: Panelist Dependency and Systemic Failure
The uncomfortable, yet undeniable, reality of the String Confusion Objection process was that the outcome of any given case was overwhelmingly dependent on the individual panelist assigned to it. This truth, while inconvenient for ICANN, fundamentally undermines the principles of fairness, predictability, and uniform application of policy that are essential for any robust dispute resolution mechanism.
ICANN’s reluctance to openly admit this panelist dependency is understandable. Such an admission would imply a colossal failure in its foundational policy design and implementation for the New gTLD program. It would necessitate a complete overhaul of the string confusion process, a daunting and disruptive task that would undoubtedly incur substantial costs, significant delays, and fierce opposition from parties who “won” their cases under the existing, albeit flawed, system. Overturning a vast number of decisions would undoubtedly lead to new waves of litigation and further erode trust in ICANN’s governance.
However, by choosing to address only a select few “embarrassing” cases, ICANN is merely patching over symptoms rather than tackling the root cause. This selective approach perpetuates the perception that fairness is applied unevenly, leaving many objectors and applicants who genuinely feel “screwed” by inconsistent decisions without any recourse. The broader implications of such systemic failures include diminished applicant confidence, reduced investment in the New gTLD space, damaged credibility for ICANN’s role as a neutral arbiter, and a lasting question mark over the perceived legitimacy of the entire program.
A Path Not Taken: Consequences of Selective Remediation
ICANN’s chosen method to deal with these inconsistencies is, at its heart, an exercise in definitional sleight of hand. By inventing a hyper-specific definition of “inconsistent,” the organization can conveniently brush aside the vast majority of problematic decisions, effectively pretending they never happened or were somehow justifiable under their revised framework. While acknowledging the need to review the .cam and .cars cases, it remains deeply unfortunate that countless other objectors and applicants, who endured similar injustices due to the unpredictable nature of the process, are being left in the cold.
A truly comprehensive and equitable solution would have involved a thorough, independent review of all String Confusion Objections, the establishment of clearer, more objective guidelines for future assessments, and potentially, the creation of a robust appellate mechanism to review panel decisions. However, ICANN has shied away from such an ambitious undertaking, opting instead for a limited intervention that addresses its most immediate and conspicuous problems. This approach, while offering a semblance of resolution for a select few, ultimately fails to mend the deeper structural flaws within the New gTLD dispute resolution framework, leaving a legacy of doubt and unaddressed grievances in its wake.