ICANN gTLD Draft Application Guide V2 Comments

[Bolei Z <zbolei@xxxxxxxxx>]

Zodiac Holdings appreciates the opportunity to submit these comments
on the different modules of the draft application guide.

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Module 2:
With reference to Section 2.1.1.1, String Confusion Review, p. 2-4:

“An application that passes this preliminary string confusion review
is still subject to challenge by an existing TLD operator or by
another gTLD applicant in the current application round.  That process
requires that a specific objection be filed by an objector having the
standing to make such an objection.  Such category of objection is not
limited to visual similarity.  Rather, confusion based on any type of
similarity (including visual, aural, or similarity of meaning) may be
claimed by an objector.”

This version of the draft has expanded the grounds that string
confusion can be claimed by an objector.  However, it is still unclear
as to what principles will be used to guide the expert string panel in
their evaluation of the objection claim.

Recommendation: A guiding principle for expert string panel should be
based on UDRP's principle of "bad faith".


With reference to Section 2.2.1, Technical and Operational or
Financial Extended Evaluation, p.2-21:

“The same panel that reviewed an application during Initial Evaluation
will conduct the Extended Evaluation, using the same criteria as
outlined at 
http://www.icann.org/en/topics/new-gtlds/draft-evaluation-criteria-18feb09-en.pdf,
to determine whether the application, now that certain information has
been clarified, meets the criteria.”

Recommendation: If an applicant fails the initial evaluation and
applies for extended evaluation, it should have the option to engage
the same panel that conducted the initial evaluation or choose a
different panel. This affords the applicant a fair evaluation process.

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Module 4:
With reference to Section 4.1.3, Self-Resolution of String Contention, p.4-5:

“Applicants that are identified as being in contention may elect to
reach a settlement or agreement among themselves that resolves the
contention…Applicants may resolve string contention in a manner
whereby one or more applicants withdraw their applications.  An
applicant may not resolve string contention by selecting a new string
or by replacing itself with a joint venture…Applicants are encouraged
to resolve contention by combining in a way that does not materially
affect the surviving applications.”

ICANN’s concerns with joint venture as a possible way of resolving
string contention are clearly specified in this current draft.  The
draft is unclear as to whether other options for resolution which do
not involve any application withdrawal, would be acceptable in ICANN’s
eyes.

Recommendation: If two or more parties can come to an agreement to
work together that despite classified as being in string contention
with one another by the panel, they clearly do not mind the presence
of the other gTLD string, this should be considered as a possible way
of resolving string contention.


With reference to Section 4.2.2, Comparative Evaluation Procedure, p.4-8:

“In the case where the applicants are in direct contention with one
another and have named the same community in their applications, one
applicant will be granted priority if it has clearly demonstrated that
it represents a majority and significantly larger share of the
community.”

Representing a majority of a community may not be easily achieved by
any applicant.

Recommendation:  The word “majority” should be removed from the above
passage.  As long as one applicant can demonstrate that it has a
significantly larger share of the community than the other applicants,
it should be deemed the winner.


With reference to Section 4.2.3, Comparative Evaluation Criteria, p.4-12:

“An applicant must score at least 14 points to be declared a winner in
a comparative evaluation.  If no applicant scores 14 or more, there is
no clear winner.  If only one applicant scores 14 or more, that
applicant will be declared the winner...Following the comparative
evaluation, ICANN will review the results and reconfigure the
contention set as needed.”

2 comments on the above passage:
1)

The scoring system has been expanded in this draft to have a wider
range of score (0-4) and the minimum criteria for winning seemed to
have been lowered.  However, the minimum criteria may still be too
high for a typical applicant.  The scoring system/criteria may still
require some refinement.

The litmus test should be whether the sTLDs granted in 2003 can meet
this new set of criteria as proposed in the DAG. It would be safe to
say that almost all of the sTLDs would be unable to meet the minimum
criteria necessary to be a winner.

2)

Applicants may wish to appeal against the scoring received during the
comparative evaluation.

Recommendation: There should be a system in place for the applicants
to appeal against the scoring that they had received during the
comparative evaluation.  This is to ensure a fairness and
transparency.


With reference to Section 5.2 of Explanatory Memorandum for String
Contention, Considerations, p.21:

“Comparative evaluation will take place if one or more community-based
applications in a contention set features such a preference.  The
comparative evaluation process will include all the applications in
the relevant contention set.”

This passage seems to be in apparent contradiction with Section 4.2.2
of DAG, Comparative Evaluation Procedures, p.4-7:

“Open applicants within the contention set, if any, will not
participate in the comparative evaluation.”

Recommendation:  Section 5.2 of Explanatory Memorandum should be
refined to add the above statement like this:

“The comparative evaluation process will include all the applications
in the relevant contention set.  However, open applicants, if any,
will not participate in the comparative evaluation.”


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Bolei, Zodiac Holdings