Consideration of Independent Review Panel's Final Declaration in Booking.com v. ICANN

Booking.com filed a request for an Independent Review Proceeding (IRP) challenging the ICANN Board's handling of Booking.com's application for .hotels, including the determination of the String Similarity Panel (SSP) to place .hotels and .hoteis in contention and the refusal of the Board to revise that determination. Booking.com also challenged the conduct of the Board in the setting up, implementation, and supervision and review of the entire string similarity review process. On 3 March 2015, the IRP Panel (Panel), comprised of three Panelists, issued its Final Declaration. After consideration and discussion, pursuant to Article IV, Section 3.21 of the ICANN Bylaws, the Board adopts the findings of the Panel, which are summarized below, and can be found in full at https://www.icann.org/en/system/files/files/final-declaration-03mar15-en... [PDF, 4.76 MB].

The Panel found that it was charged with "objectively" determining, whether or not the Board's actions are in fact consistent with the Articles, Bylaws, and Guidebook, thereby requiring that the Board's conduct be appraised independently, and without any presumption of correctness. The Panel agreed with ICANN that in determining the consistency of the Board action with the Articles, Bylaws, and Guidebook, the Panel is neither asked to, nor allowed to, substitute its judgment for that of the Board.

Using the applicable standard of review, the Panel found that objectively there was not an inconsistency with the Articles, Bylaws and Guidebook, noting that "the established process was followed in all respects" concerning the process followed by the String Similarity Panel and the BGC's [Board Governance Committee] handling of Booking.com's reconsideration request." (Final Declaration, https://www.icann.org/en/system/files/files/final-declaration-03mar15-en... [PDF, 4.76 MB], at p. 41.)

Specifically, the Panel concluded:

144. Booking.com has failed to identify any instance of Board action or inaction, including any action or inaction of ICANN staff or a third party (such as ICC, acting as the SSP) that could be considered to be inconsistent with ICANN's Articles of Incorporation or Bylaws or with the policies and procedures established in the Guidebook. This includes the challenged actions of the Board (or any staff or third party) in relation to what Booking.com calls the implementation and supervision of the string similarity review process generally, as well as the challenged actions of the Board (or any staff or third party) in relation to the string similarity review of .hotels in particular.

145. More particularly, the Panel finds that the string similarity review performed in the case of .hotels was not inconsistent with the Articles or Bylaws or with what Booking.com refers to as the "applicable rules" as set out in the Guidebook.

146. To the extent that the Board's adoption and implementation of specific elements of the new gTLD Program and Guidebook, including the string similarity review process, could potentially be said to be inconsistent with the principles of transparency or fairness that underlie ICANN's Articles and Incorporation and Bylaws (which the Panel does not say is the case), the time to challenge such action has long since passed.
(Id. at pp. 42-43.) Accordingly, the Panel declared ICANN to be the prevailing party. (See id. at ¶ 152, p. 43.)

The Panel acknowledged certain legitimate concerns regarding the string similarity review process raised by Booking.com, which concerns the Panel noted were shared by some members of the NGPC. Most notably, the IRP Panel noted that while the String Similarity Review Process, as it exists does not allow for some procedural appeal mechanism, "[a]s to whether they should be, it is not our place to express an opinion, though we note that such additional mechanisms surely would be consistent with the principles of transparency and fairness." (Id. at ¶ 128, p. 37.)

The Board appreciates the IRP Panel comments with respect to ways in which the New gTLD Program processes might improve in future rounds. ICANN will take the lessons learned from this IRP and apply it towards its ongoing assessments of the ways in which it can improve upon its commitments to accountability and transparency. In particular, the Board will include the following concerns expressed by the Panel in its review of the New gTLD Program for the next round:

"The Guidebook provides no means for applicants to provide evidence or make submissions to the SSP (or any other ICANN body) and to be fully "heard" on the substantive question of the similarity of their applied-for gTLD strings to others."
"[T]he process as it exists does [n]ot provide for gTLD applicants to benefit from the sort of procedural mechanisms - for example, to inform the SSP's review, to receive reasoned determinations from the SSP, or to appeal the merits of those determinations.
This action will have no financial impact on the organization and no direct impact on the security, stability or resiliency of the domain name system.

This is an Organizational Administrative function that does not require public comment