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Uh-oh: ICANN will be forced to act after conflicting .cars decisions

A conflicting opinion over .cars leads to an interesting contention set problem.

A panelist for a string confusion objection brought by Google against DERcars, LLC over the top level domain name .cars has ruled in favor (link removed because no longer active) of Google.

By ruling in favor of Google, that means DERcars’ application for .cars will be put into a contention set with Google’s application for .car.

This creates a big problem.

You see, DERcars’ application isn’t the only one for .cars. Donuts applied for it, too. Google also objected to Donuts’ application but a different panelist ruled against Google in that case. Uniregistry also applied and Google’s objection in that case is still outstanding. [Update: Uniregistry won its case.]

How will this work? One application for .cars will be in a contention set with .car, but at least one won’t.

If DERcars wins an auction against Google, would it then also have to go to auction against Donuts (and possibly Uniregistry?)

ICANN is going to be forced to show its hand after this decision. The issue of conflicting string confusion objections will have to be addressed.

[See the comments for discussion on how this will likely be handled.]

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  1. Paul says

    Icann just signed contracts with separate registries for .career and .careers. I’m confused even before they get into the root zone.

  2. John Berryhill says

    “ICANN is going to be forced to show its hand after this decision. The issue of conflicting string confusion objections will have to be addressed.”

    Why?

    In the scenario you propose, it only becomes a problem if the plural wins the “mixed” contention set. If the plural does not win that set, then what is the problem?

      • John Berryhill says

        That would be the safest course for them. ICANN would not be covering itself with glory by stepping in and doing anything, absent a necessity to do so.

        Nobody was forced to participate in these string contention proceedings and thus place the determination of these one-off decisions by arbitrators.

        So what decision is it that you propose ICANN is somehow compelled to make?

        1. Is ICANN “forced” to decide the question of: “whether English plurals of the form taking the letter ‘s’ should be allowed to co-exist with the singular forms”?

        Because if that is the question you believe ICANN is somehow compelled to answer, then what do you have to say to applicants of singular/plural pairs in which neither applicant challenged the other?

        2. Is ICANN “forced” to decide that question only in cases where there have been conflicting decisions, or as a general principle?

        3. Would an ICANN decision necessarily be better than settlements the applicants themselves might work out?

        But I could be assuming too much. Can you frame a question which these decisions force ICANN to answer, absent the auction results in the respective contention sets?

        • Andrew Allemann says

          It’s neither of the three.

          ICANN is “forced” to decide that question only in cases where there have been conflicting decisions and the challenge was brought by another new TLD, not an existing one.

          With the other decisions they can let them stay without any repercussions other than upset applicants.

          In this case, how would DERcars participate in the auction? If they win it for $5 million, then what happens? Wouldn’t ICANN have to give them some guidance about if they win the auction, would they then have to win another auction to resolve the contention set?

          • John Berryhill says

            If DERcars beats Google in an auction then, yes, someone needs to make a decision. That’s a big “if”, and one assumes that ICANN isn’t going to make any more decisions than it has to.

          • Andrew Allemann says

            Should DERcars have to go into the auction not knowing what happens if it wins? Should Uniregistry and Donuts have to negotiate among themselves not knowing if then they’ll have to negotiate with DERcars (assuming Uniregistry defeated Google’s objection).

            There are a lot of unknowns, but this is a case where I believe ICANN has to do something.

  3. Paul Stahura says

    This case (contention sets comprising both directly and indirectly contended strings) has been foreseen and is handled in Module 4 of the guidebook (see 4.1.1).

      • Paul Stahura says

        I believe it’ll be one contention set… until it is two. ICANN’s ascending price auction applies (or other alternative contention resolution beforehand also applies). I believe it works as follows: If Google wins (does not drop out, in ICANN auction or otherwise) then there will be two TLDs in the root: Google’s .car and one of the other 2 .cars (this assumes that UniRegistry wins the objection with Google. if UniRegistry does not win objection, then it can only be Donut’s .car that is inserted in the root if Google does not drop out). If Google drops out, then there will be just one TLD inserted in the root: one of the other’s .cars – which .cars is inserted in this case depends on which of the other 3 does not drop out. Agree its complex but when thinking it though keep in mind that if neither Google or Donuts drops out, Google’s .car will exist in the root with Donuts’ .cars

        • Andrew Allemann says

          So if Google “drops out” by losing the auction of last resort to DERcars, then DERcars would also have to go to auction against Uniregistry and Donuts? It would seem the Google/DERcars contention set would have to be settled first before the Uniregistry/Donuts one.

          • Andrew Allemann says

            Having read section 4.1.1 again, my reading is this: all .car and .cars applications are now technically in a contention set due to both direct and indirect contention. IF DERcars drops out then Uniregistry and Donuts’ applications are no longer in a contention set with Google’s .car. But what if Google doesn’t strike a deal with DERcars? Then it seems that technically, an auction to resolve the contention set would take place among all four applicants for .car and .cars.

            Perhaps the play here is for Uniregistry and Donuts to pay DERcars to get lost (since it probably doesn’t want to go up against Google anyway), thus making the .cars applications no longer in contention with .car.

            I’m willing to be persuaded otherwise, but this is how I read it.

          • Paul Stahura says

            Yes, Google/DERcars (and Uni if its in that set) contention set could get settled first, but it does not necessarily have to. A *simultaneous* (lets say UniRegistry loses its objection with Google, so two 3-way actions are happening) ascending clock auction (ICANN or otherwise) among all four applicants could be used to settle it too.

  4. Dirk Krischenowski says

    Everybody in the ICANN community recognized that the whole new gTLDs similarity issues stinks to high heaven.

    But to make an informed decision all of us need more information. For instance we have not talked about the fact that there are some more new gTLDs that are very likely to cause user confusion although there have been no String Confusion Objections for these strings. Please note that the visual similarity of .unicorn / .unicom was 94%. Here are some examples of other visual similarity scores from the sword tool:

    .vermögensberater / .vermögensberater 80% visual similarity
    .allfinanzberater / .allfinanzberater 80% visual similarity
    .photo / .photos 81% visual similarity
    .career / .careers 84% visual similarity
    .coupon / .coupons 84% visual similarity
    .chanel / .channel 86% visual similarity
    .accountant / . accountants 88% visual similarity
    .theater /.theatre 93% visual similarity

    I’m not a lawyer but if the visual string similarity is already determined high it is difficult to argue that other similarity factors are so different, that the visual effect diminishes.

    We’ve also updated of our chart that visualizes the discrepancy in String Confusion Objection determinations and Visual Similarity Decisions at http://dotzon.de/ICANN_ICDR_String_Confusion_Objections.pdf

    Dirk Krischenowski
    Founder and CEO
    dotBERLIN GmbH & Co. KG

  5. Paul Stahura says

    Congrats to Uniregistry. So barring some other contention resolution beforehand, there will then definitely be two simultaneous ascending clock auctions at ICANN, one is a two-way (Google’s .car and DERcars’ .cars) and one is a three-way (the 3 .cars)

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