[ALAC] Singular/Plural in new gTLDs

[Alan Greenberg]

On 24 June 2013 as requested by the GAC, the Board New gTLD Program 
Committee (NGPC) considered the issue of singular and plural stings 
being confusingly similar and decided to let the original process 
stand (subject to individual objections). The record of the decision 
can be found at 
http://www.icann.org/en/groups/board/documents/minutes-new-gtld-25jun13-en.htm#2.d. 
Of particular note is a statement issued by three Board members 
(George Sadowsky, Olga Madruga-Forti and Cherine Chalaby) who 
supported the decision but regretted that, based on the Applicant 
Guidebook wording, they did not believe that they had the leeway to 
vote against it. One Board member (Mike Silber) did oppose the decision.

A central issue is that "confusingly similar" test relies purely on 
visual similarity and in the eyes of most (who were involved in the 
decision), adding an "S" makes it a recognizably different string.

The salient part of the Applicant Guidebook 
(http://newgtlds.icann.org/en/applicants/agb/guidebook-full-04jun12-en.pdf) 
is section 2.2.1.1 of Module 2.

>This review involves a preliminary comparison of each applied-for 
>gTLD string against existing TLDs, Reserved Names (see subsection 
>2.2.1.2), and other applied-for strings. The objective of this 
>review is to prevent user confusion and loss of confidence in the 
>DNS resulting from delegation of many similar strings.
>
>Note: In this Applicant Guidebook, "similar" means strings so 
>similar that they create a probability of user confusion if more 
>than one of the strings is delegated into the root zone.
>
>The visual similarity check that occurs during Initial Evaluation is 
>intended to augment the objection and dispute resolution process 
>(see Module 3, Dispute Resolution Procedures) that addresses all 
>types of similarity.

I believe that the NGPC decision was incorrect. The problem is the 
belief that "visual similarity" relies purely on what, in computer 
terminology, would be called "pattern matching". Pattern matching is 
certainly part of human perception, but it is not limited to that. At 
issue is whether two strings will be PERCEIVED as being equivalent, 
and perception is a far more complex (and less understood) issue.

The real issue is that if you earlier found something at 
hilton.hotel, or had decided that the reviews at sheraton.hotel were 
something you trusted, will you later remember if it was really those 
sites or hilton.hotels or sheraton.hotels?

At best, this could be considered a means of forcing anyone who 
registers a domain with .hotel or .hotels to register both, and map 
both of them to the same site. If that were to happen, the 
predictions of the Intellectual Property Constituency would be borne 
out, and all of those using these TLDs would have to make double the 
investment in domain names (presuming this is even possible with 
differing rules for each TLD). But the impact on users would be minimal.

But since we cannot guarantee that both TLDs will remain forever in 
sync, we do have a user problem. Once cannot expect the typical 
Internet user to be able to differentiate between two such name 
spaces, and therefore I believe that we have a genuine case of 
"confusingly similar". And one that will arguably have as much or 
more impact on real Internet users, the ones that we are supposed to 
be here to defend, than any other case I can recall in my 7 year 
involvement with ICANN At-Large.

If others on the ALAC agree, I would be happy to create a statement 
reflecting what I have said here, that we can, in our formal Advisory 
Committee role, forward as Advice to the Board.

Alan