THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/385/ICANN/2

HOTEL CONSUMER PROTECTION COALITION
(USA)
vs/
BOOKING.COM B.V(THE NETHERLANDS)(Consolidated with case No. EXP/447/ICANN/64
HOTREC, HOTELS, RESTAURANTS & CAFES IN EUROPE (BELGIUM) vs/BOOKING.COM B.V. (THE NETHERLANDS))

This document is a copy of the Expert Determination rendered in conformity with the New
gTLD Dispute Resolution Procedure as provided in Module 3 of the gTLD Applicant
Guidebook from ICANN and the ICC Rules for Expertise.

HOTEL CONSUMER PROTECTION COALITION (USA)–V–
BOOKING.COM B.V. (THE NETHERLANDS)INTERNATIONAL CENTRE FOR EXPERTISE
OF THE INTERNATIONAL CHAMBER OF COMMERCE
EXP/385/ICANN/2
CONSOLIDATED WITH CASE EXP/447/ICANN/64
HOTREC, HOTELS, RESTAURANTS & CAFES IN EUROPE (BELGIUM) v. BOOKING.COM B.V. (THE NETHERLANDS)

EXPERT DETERMINATIONEXP/385/ICANN/2!

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TABLE OF CONTENTS

1.

Introduction

3

2.

Proceedings

5

3.

Potential Relief

74.

Place of the Proceedings

7

5.

Language of the Proceedings

7

6.

Communications

7

7.

Standards and Burden of Proof

8

8.

Reasoning and Decision

8

9.

Costs

24

10. Determination

25

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This expert determination is made in expertise proceedings pursuant to Module 3 of thegTLD Applicant Guidebook (“Guidebook”) and its Attachment, the New gTLD Dispute
Resolution Procedure (the “Procedure”). These proceedings take place under theInternational Chamber of Commerce (“ICC”) Rules for Expertise (in force as from 1
January 2003) (the “Rules”), as supplemented by the ICC Practice Note on the
Administration of Cases under the Procedure (the “ICC Practice Note”).

1. INTRODUCTION
1.1

The Internet Corporation for Assigned Names and Numbers (“ICANN”) has implemented a
program for the introduction of new generic Top-Level Domain Names (“gTLDs”). Further
to this program, parties may apply for new gTLDs in accordance with the terms andconditions set by ICANN. Procedure, article 1(a).

1.2

The program includes a dispute resolution procedure for resolving disputes between a party
who applies for a new gTLD and a party who objects to the application – namely, theProcedure. Id., article 1(b). The Procedure provides that dispute resolution proceedings
shall be administered by a Dispute Resolution Service Provider (a “DRSP”) in accordancewith the Procedure and the applicable DRSP rules identified in article 4(b) of the Procedure.
Id., article 1(c).

1.3

By applying for a new gTLD, an applicant accepts the applicability of the Procedure and theapplicable DRSP rules. An objector likewise accepts the applicability of the Procedure andthe applicable DRSP rules by filing an objection to an application for a new gTLD. The
parties cannot derogate from the Procedure without the express approval of ICANN andcannot derogate from the applicable DRSP rules without the express approval of the relevant
DRSP. Id., article 1(d).

1.4There are four types of objections a party may raise against an application for a new gTLD.
Id., article 2(e). One of these is known as a “Community Objection”. A Community
Objection is an objection that there is substantial opposition to the application from asignificant portion of the community to which the string (i.e., the new gTLD) may be
explicitly or implicitly targeted. Id., article 2(e)(iv). The Hotel Consumer Protection

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Coalition (the “Objector”) has raised this type of objection against the application ofBooking.com B.V. (the “Applicant”) for the new gTLD “.HOTELS” (the “Application”).
1.5

Pursuant to articles 3(d) and 4(b)(iv) of the Procedure, Community Objections shall beadministered by the ICC International Centre for Expertise (the “Centre”) in accordancewith the Rules, as supplemented by the ICC as needed. The ICC Practice Note is such a
supplement to the Rules. In the event of any discrepancy between the Procedure and theRules, the Procedure shall prevail. Id., article 4(c). In all cases, the expert shall ensure thatthe parties are treated with equality, and that each party is given a reasonable opportunity topresent its case. Id., article 4(e).

1.6

The Objector’s contact details are as follows:
HOTEL CONSUMER PROTECTION COALITION
Attn: Mr. Michael Menis, InterContinental Hotels Group
Three Ravinia Drive, Suite 100
Atlanta, GA 30346, USA
Email: michael.menis@ihg.com

1.7

The Objector is represented by:
Mr. Douglas M. Isenberg
THE GIGALAW FIRM
5555 Glenridge Connector, Suite 200
Atlanta, GA 30342, USA
Email: disenberg@gigalawfirm.com

1.8

The Applicant’s contact details are as follows:
BOOKING.COM B.V.
Attn: Mr. Jaap van den Broek, Corporate Counsel
Herengracht 597
1017 CE Amsterdam, The Netherlands
Email: jaap.vandenbroek@booking.com

1.9

The Applicant is represented by:
Mr. Alfred Meijboom
Mr. Joran Spauwen
KENNEDY VAN DER LAAN N.V.
Haarlemmerweg 333
1051 LH Amsterdam, The Netherlands
Email: Alfred.Meijboom@kvdl.nl
Email: Joran.Spauwen@kvdl.nl

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1.10

The Expert in these proceedings is:
Ms. Jennifer Kirby
KIRBY
68 rue du Faubourg Saint-Honoré
75008 Paris, France
Email: jennifer.kirby@kirbyarbitration.com

1.11

The contact details for the Centre are:Ms. Hannah TümpelICC INTERNATIONAL CENTRE FOR EXPERTISE
33-43 avenue du Président Wilson
75016 Paris, France
Email: expertise@iccwbo.org

2. PROCEEDINGS
2.1

Below is a summary of the main procedural steps in these proceedings.

2.2

On 12 March 2013, the Objector filed its Community Objection with the Centre (the“Objection”) pursuant to article 7 of the Procedure.

2.3

By letter dated 28 March 2013, the Centre notified the parties that it had conducted anadministrative review of the Objection pursuant to article 9(a) of the Procedure and had
found the Objection in compliance with articles 5 through 8 of the Procedure. The Centre
accordingly registered the Objection for processing in accordance with article 9(b) of theProcedure.

2.4

By letter dated 25 April 2013, and with the agreement of all parties, the Centre informed theparties that it had decided to consolidate this case with case EXP/447/ICANN/64 pursuant toarticle 12 of the Procedure.

2.5

On 24 May 2013, the Applicant submitted its response to the Objection (the “Response”)
pursuant to article 11 of the Procedure. By letter dated 30 May 2013, the Centre confirmed
to the parties that the Response was in accordance with the Procedure and the Rules.

2.6

On 14 June 2013, in reaction to the Applicant’s Response, the Objector submitted an
additional submission dated 12 June 2013 (“Additional Submission”).
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2.7

On 19 June 2013, the Applicant objected to the Objector’s filing its Additional Submission.

2.8

On 24 June 2013, the Chairman of the Standing Committee appointed Ms. Kirby as theExpert in the consolidated proceedings pursuant to article 13 of the Procedure, article 9(5) of
the Rules and article 3(3) of Appendix I to the Rules.

2.9

On 2 July 2013, the Objector requested a stay of these proceedings.

2.10

On 9 July 2013, the Applicant opposed the requested stay.

2.11

On 6 August 2013, the Centre confirmed the full constitution of the Expert Panel andtransferred the file to the Expert. The Centre clarified that, despite the consolidation of thiscase with case EXP/447/ICANN/64, the Expert was to render a separate determination foreach case.

2.12

By letter dated 13 August 2013, the Expert denied the Objector’s request for a stay of theseproceedings. The reasons for the Expert’s decision are set forth in her letter and areincorporated here by reference.

2.13

Also on 13 August 2013, by way of the same letter, the Expert decided to allow in the
Objector’s Additional Submission pursuant to article 17(a) of the Procedure.

2.14

On 27 August 2013, the Applicant filed its response to the Additional Submission(“Additional Response”).

2.15

By two emails dated 3 September 2013, the Applicant confirmed that it had no objection to
the way these proceedings were conducted and agreed that it had been treated with equality
and has been given a reasonable opportunity to present its position. By two emails dated
2 and 3 September 2013, the Objector did the same.

2.16

Article 21(a) of the Procedure, provides that the Centre and the expert shall make reasonable
efforts to ensure that the expert renders her decision within 45 days of the “constitution of
the Panel”.1 The Centre considers that the Panel is fully constituted when the expert is1

All quotations in this determination are set forth “as is”. Any grammatical or
typographical errors are in the original documents.
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appointed, the parties have paid their respective advances on costs in full and the file istransmitted to the expert. In this case, the Panel was constituted on 6 August 2013. The
Centre and the Expert were accordingly to make reasonable efforts to ensure that her
determination was rendered no later than 20 September 2013. Procedure, articles 6(e), 6(f).
2.17

Pursuant to article 21(b) of the Procedure, the Expert submitted her determination in draft
form to the Centre for scrutiny as to form before it was signed.

2.18

Further to paragraph 6 of the ICC Practice Note, the parties waived the requirements for theexpert mission as set out in article 12(1) of the Rules.

3. POTENTIAL RELIEF
Article 21(d) of the Procedure provides that the remedies available to an applicant or an
objector in these proceedings are limited to the success or dismissal of the objection and therefund by the Centre to the prevailing party of its advance payment of costs pursuant toarticle 14(e) of the Procedure and any relevant provisions of the Rules.

4. PLACE OF THE PROCEEDINGS
Pursuant to article 4(d) of the Procedure, the place of the proceedings is the location of the
DRSP – i.e., the Centre – which is located in Paris, France.

5. LANGUAGE OF THE PROCEEDINGSEnglish is the language of the proceedings pursuant to article 5(a) of the Procedure. All
submissions in these proceedings have been made in English.

6. COMMUNICATIONS
Pursuant to article 6(a) of the Procedure, all communications by the parties, the Expert andthe Centre in these proceedings were submitted electronically.

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7. STANDARDS AND BURDEN OF PROOF
7.1

In determining an objection, the expert shall apply the standards that have been defined by
ICANN. Procedure, article 20(a). In this regard, section 3.5 of Module 3 of the Guidebook
sets forth “Dispute Resolution Principles (Standards)” for each of the four types of objectionthat can be raised under the Procedure. The standards applicable to Community Objections
are set forth in section 3.5.4 of Module 3 of the Guidebook. In addition, the expert may
refer to and base her findings upon the statements and documents submitted and any rules or
principles that she determines to be applicable. Id., article 20(b).

7.2

The Objector bears the burden of proving that its Objection should be sustained inaccordance with the applicable standards. Id., article 20(c).

8. REASONING AND DECISION
8.1

This determination is made pursuant to article 21 of the Procedure. Further to paragraph 8of the ICC Practice Note, the parties are deemed to have agreed that this determination shallbe binding upon the parties, as permitted by article 12(3) of the Rules.

8.2

Although I have considered all of the allegations, evidence and arguments the parties havesubmitted to me, I refer in my determination only to those I consider relevant to myreasoning and decisions.
Two-Step Approach

8.3

To have its Objection considered, the Objector must have standing. As the first step inmaking my determination, I accordingly must review the Objection and decide whether the
Objector has standing to object. Guidebook, Module 3 § 3.2.2.

8.4

To have standing to raise its Community Objection, the Objector must prove that (1) it is an“established institution” and (2) it has an “ongoing relationship with a clearly delineatedcommunity”. Id. § 3.2.2.4. And the community named by the Objector must be acommunity “strongly associated” with the new gTLD that is the subject of the Application.
Id.
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8.5

If I find that the Objector has standing, my second step is to determine the merits of the
Objection in light of the standards set out in section 3.5.4 of Module 3 of the Guidebook
applicable to Community Objections. Further to those standards, I am to apply a four-part
test for determining whether there is substantial opposition to a gTLD application from asignificant portion of the community to which the gTLD may be targeted. Specifically, for a
Community Objection to be successful, an objector must prove that (1) the community
invoked by the objector is a “clearly delineated community”; (2) community opposition to
the application is “substantial”; (3) there is a “strong association between the community
invoked and the applied-for gTLD”; and (4) the application creates a “likelihood of material
detriment to the rights or legitimate interests of a significant portion of the community towhich the string may be explicitly or implicitly targeted.”Standing

8.6

The Objector contends that it has standing to object to the Application for the new gTLD“.HOTELS”. According to the Objector, its members include the world’s leading hotel
companies – namely, Accor, Choice Hotels International (“Choice”), Hilton Worldwide(“Hilton”), Hyatt, Intercontinental Hotels Group (“IHG”), Marriott, Starwood Hotels andResorts (“Starwood”) and Wyndham Hotel Group (“WHG”). By number of rooms, IHG,
Marriott, Hilton, WHG, Accor, Choice and Starwood are the top seven hotel companies in
the world, and Hyatt is the thirteenth. See Special Report: Hotels 325, Hotels Magazine,
July/August 2012, Objection, Annex 1 at 2. Together, the Objector’s members provide
more than 31,000 hotels offering more than four million hotel rooms in approximately 100
counties around the globe. Objection at 4; profiles of the Objector’s members, Objection,
Annex 9. Their hotel brands – e.g., Sofitel, ibis, Comfort Inn, Waldorf Astoria Hotels &Resorts, Hilton Hotels & Resorts, Park Hyatt, InterContinental Hotels & Resorts, Holiday
Inn Hotels & Resorts, Ritz-Carlton, Marriott Hotels & Resorts, Le Meridien, Westin,
Sheraton, St. Regis, W – are among the most well-known and well-established in the world.
Objection at 4-5.

8.7

The Objection is also formally supported by the American Hotel & Lodging Association(“AH&LA”), the only national association representing all sectors and stakeholders in thelodging industry in the United States with over 8,700 properties in membership with over
1.3 million rooms (see letter dated 4 March 2013 from AH&LA, Objection, Annex 5), and9!

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HOTREC, the umbrella association of the hospitality sector in Europe, which brings
together 44 national associations representing the interests of the hospitality industry in 27
European countries (see letter dated 6 March 2013 from HOTREC, Objection, Annex 6).
8.8

The Objector states it was established in 2006 – before the establishment of the new gTLD
application process – to address “industry-wide problems arising from e-commerce practices
that harm or mislead consumers, and in turn damage the reputation of coalition member
companies, their brands and the hospitality industry as a whole.” Objection at 4; declaration
dated 12 June 2013 of Andrew Kauffman, Additional Submission, Annex B. The Objector’s
activities focus on researching and resolving unfair and misleading online practices andmarketing-related activities. Objection at 4. The Objector also educates consumers aboutsuch practices and how to protect themselves and works with governmental authorities andothers to reduce harmful e-commerce related activities. Id. Although most of its work isdone outside the public arena and has been unrelated to the domain name system (the“DNS”), the Objector has publicly commented on ICANN issues on several occasions. See,e.g., letter dated 22 June 2006 from the Objector to ICANN (regarding the purpose of Whois
and the Whois contacts), Objection, Annex 2; letter dated 12 January 2007 from the
Objector to ICANN (regarding the Preliminary Task Force Report on Whois Services),
Objection, Annex 3.

8.9

In light of the above, the Objector considers that it is (1) an “established institution” with
(2) an “ongoing relationship with a clearly delineated community” – namely, the “hotel
community” (Objection at 5)2 – that is “strongly associated” with the new gTLD“.HOTELS” that is the subject of the Application, and that it therefore has standing to bring
its Objection. For the reasons explained below, I agree.

8.10

Section 3.2.2.4 of Module 3 of the Guidebook sets forth a series of non-exclusive factors I
may consider in determining whether the Objector is an “established institution”. These
non-exclusive factors are (1) the level of global recognition of the institution; (2) the length2

In its Response, the Applicant attempts to redefine the community at issue as the “Limited
Hotel Community”, which it defines as the Objector’s members. See, e.g., Response ¶¶ 3.23.4; see also Additional Response at 5. It is not clear to me, however, on what basis the
Applicant considers it can redefine the community the Objector considers to be at issue.
Moreover, the Applicant’s position appears to be based on the idea that the Objector cannot
represent the interests of a community beyond its membership. As associations frequently
represent the interests of communities far larger than their membership, I do not see any
basis for the Applicant’s position.
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of time the institution has been in existence; and (3) public historical evidence of theinstitution’s existence, such as the presence of a formal charter or national or international
registration, or validation by a government, inter-governmental organization, or treaty. In all
events, however, the institution must not have been established solely in conjunction withthe gTLD application process.
8.11

That same section also sets forth a series of non-exclusive factors that I may consider indetermining whether the Objector has an “ongoing relationship with a clearly delineatedcommunity”. These non-exclusive factors are (1) the presence of mechanisms forparticipation in activities, membership and leadership; (2) an institutional purpose related tothe benefit of the associated community; (3) the performance of regular activities that
benefit the associated community; and (4) the level of formal boundaries around thecommunity.

8.12

In determining whether the Objector has standing, I am to “perform a balancing of thefactors listed above, as well as other relevant information”. Guidebook, Module 3 at 3-8. It
is not expected that the Objector must satisfy each and every factor considered in order tosatisfy the standing requirements. Id.

8.13

Based on the record in this case, I find that the Objector is an “established institution”. The
Objector was established in 20063 and was not created in conjunction with the gTLD
application process, which opened for user registration and application submission in
January 2012. See Guidebook, Module 1 at 1-2. Although the Objector does not have ahigh public profile, it necessarily enjoys global recognition within the hotel community by
virtue of the international character of its members, who operate hotels in over 100 countries
in Africa, Asia, Australia, Europe, North America and South America. That both AH&LA
and HOTREC – which together represent the hospitality industry in 28 countries in Europe
and North America – have formally supported its Objection, also reflects the global
recognition the Objector enjoys in the hotel community.4
3

The Applicant contends that the Objector has failed to prove that it was in fact establishedin 2006. Response ¶ 1.3; see also Additional Response at 3. I disagree and consider thedeclaration of Mr. Kauffman (Additional Submission, Annex B) sufficient evidence on thisscore.

4

The Applicant considers that the Objector has failed to prove that it has received a “level ofglobal recognition” and that the Objector has in fact conceded that it is not widely known.
Response ¶ 1.4. In making this statement, the Applicant appears to read “global
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8.14

I also find that the Objector has an “ongoing relationship with a clearly delineatedcommunity” – namely, the hotel community. Though it is an element an objector must
prove to establish standing (Guidebook, Module 3 § 3.2.2.4) and to prevail on the merits of
its objection (id. § 3.5.4), the Guidebook does not define what constitutes a “clearlydelineated community”. When evaluating the merits of an objection, the Guidebook
suggests that I could balance a number of factors to determine whether the community at
issue can be considered “clearly delineated”. These factors include (1) the level of publicrecognition of the group as a community at a local or global level; (2) the level of formalboundaries around the community and what persons or entities are considered to form thecommunity; (3) the length of time the community has been in existence; (4) the global
distribution of the community; and (5) the number of people or entities that make up thecommunity. Id. § 3.5.4.

8.15

The Guidebook does not suggest any factors I could consider when considering what
constitutes a “clearly delineated community” for purposes of standing. But there is nothing
in the Guidebook that suggests that the words “clearly delineated community” should begiven any different meaning when evaluating standing than they are given when evaluating
the merits of an objection. In light of this, I consider that the five factors listed above may
be helpful to my analysis of whether the hotel community is a “clearly delineatedcommunity” for purposes of assessing whether the Objector has standing.

8.16

In considering these factors, the Objector has suggested that I take into consideration theviews of the Independent Objector (the “IO”) on what constitutes a “clearly delineatedcommunity”. See Objection at 5; comments of the IO regarding the application for “.WTF”,
Objection, Annex 7. For its part, the Applicant has not objected to my doing so, nor taken
issue with the views the IO has expressed. Under these circumstances, I consider it
appropriate to take the IO’s views into account for purposes of this case.

recognition” to mean global recognition by the general public. I do not see any basis to read
“global recognition” this way. For purposes of evaluating an objector’s standing to bring a
Community Objection, the more pertinent issue would seem to be whether the objector hasreceived a level of global recognition within the community whose interests it purports toserve.
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8.17

The IO has noted that the “notion of ‘community’ is wide and broad” and can include a
community of interests.5 Id. at 5. It is a group of individuals who have something incommon or who “share common values, interests or goals (i.e. the health, legal, internet or
ICANN community).” Id. “[W]hat matters is that the community invoked can be clearlydelineated, enjoys a certain level of public recognition and encompasses a certain number ofpeople and/or entities.” Id.

8.18

With this approach in mind, I find that the hotel community – like the legal community or
the health community – is a “clearly delineated community” composed of people andentities operating hotels. It is common knowledge that this community has many thousandsof members around the world and has existed for centuries. The Objector necessarily has an
ongoing relationship with the hotel community because its current members include theseven largest hotel companies in the world with tens of thousands of hotels across the globe.
And the Objector’s work related to unfair and misleading online practices and marketingrelated activities is designed to help protect consumers and the reputation of its members,
their brands and the hospitality industry as a whole. That the hotel community is “strongly
associated” with the gTLD “.HOTELS” cannot be gainsaid.6

8.19

I accordingly find that the Objector has standing to bring the Objection at issue here.

8.20

The Applicant resists this conclusion on the grounds that the Objector is not an “establishedinstitution” and therefore cannot have standing. Response ¶¶ 1.1-1.9. The Applicant’s
primary argument in this regard is that the Objector cannot have standing because it does not
5

The IO does not act on behalf of any particular persons or entities, but acts solely in thebest interests of the public who uses the global Internet. The IO may, among other things,
file Community Objections against “highly objectionable” gTLD applications to which no
Community Objection has otherwise been filed. The IO is granted standing to file
Community Objections, notwithstanding the regular standing requirements for suchobjections. Guidebook, Module 3 § 3.2.5.

6

Although it is an element an objector must prove to establish standing (Guidebook,
Module 3 § 3.2.2.4) and to prevail on the merits of its objection (id. § 3.5.4), the Guidebook
does not define what it means for a community to be “strongly associated” with the appliedfor gTLD. When evaluating the merits of an objection, the Guidebook suggests several
factors I could balance to determine whether there is such a “strong association”. These
include (1) statements contained in the application; (2) other public statements by theapplicant; and (3) associations by the public. Id. § 3.5.4. While these factors could also be
potentially helpful in the context of evaluating the term “strongly associated” for purposes ofstanding, I do not consider a factor-by-factor analysis necessary on the facts presented here,
where the applied-for gTLD effectively names the community at issue.
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exist as a “legal entity and has no right to be a party in legal proceedings, including theseobjection procedure”. Id. ¶ 1.2; see also Additional Response at 2; Bing.com printout dated
1 May 2013, Response, Annex 2; HTTP Request and Response Header, Response, Annex 4;
letter dated 21 May 2013 from Hawkins Parnell Thackston & Young to Kennedy Van derLaan, Response, Annex 5. I disagree.
8.21

As detailed above (¶ 8.10), Module 3 of the Guidebook sets forth a non-exclusive list offactors that I may consider when evaluating whether the Objector is an “establishedinstitution”. None of these factors suggest that an objector may only be an “establishedinstitution” if it is a legal entity that can be a party to “legal proceedings”, and I see noreason to import such a requirement here. In this regard, I note that the Applicant has not
explained on what basis this expertise procedure under the Procedure and the Rules should
be considered “legal proceedings” and I am not aware of any. Moreover, on a practicallevel, the Applicant’s argument that the Objector must have legal personality might havemore appeal if these proceedings could result in a decision directing the Objector to do or
refrain from doing something. As noted above (¶ 3), however, they cannot. The remedies
available to the Applicant or the Objector under the Procedure are limited to the success or
dismissal of the Objection and to the refund by the Centre to the prevailing party of its
advance payment of costs. In these circumstances, I see no reason to limit standing to
objectors who are legal entities as the Applicant proposes.

8.22

The Applicant also contends that the Objector does not have standing because it does nothave “an ongoing relationship with a clearly delineated community” that is “strongly
associated” with the new gTLD that is the subject of the Application (i.e., “.HOTELS”). See
Response ¶¶ 2.1-2.2, §§ 4-8, 10; Additional Response at 4. For the reasons noted above(¶ 8.18), I disagree. I also note that the Applicant’s arguments in this regard appear
principally to be responding to arguments raised in the Objection (at 5-8), where the
Objector conflates itself with the hotel community – arguments I have not adopted inreaching my conclusion that the Objector has standing. Indeed, the Objector conflates itself
with the hotel community at numerous points throughout its Objection, a matter I return towhen discussing the merits of the Objection below. See infra ¶ 8.45.

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Merits
8.23

Having found that the Objector has standing, I must now turn to the merits of its Objection.
As noted above (¶ 8.5), with respect to Community Objections, the Guidebook sets forth afour-part test for determining whether there is substantial opposition to a gTLD applicationfrom a significant portion of the community to which the gTLD may be targeted.
Specifically, to succeed, the Objector must prove that (1) the community it invokes – thehotel community – is a “clearly delineated community”; (2) community opposition to theapplication is “substantial”; (3) there is a “strong association” between the hotel community
and the gTLD “.HOTELS”; and (4) the Application creates a “likelihood of material
detriment to the rights or legitimate interests of a significant portion” of the hotel
community.

8.24

In the context of deciding standing, I have already found that the hotel community is a“clearly delineated community” and that there is a “strong association” between the hotel
community and the gTLD “.HOTELS”. See supra ¶ 8.18. It therefore remains for me todetermine whether the hotel community’s opposition to the Application is “substantial” andwhether the Application creates a “likelihood of material detriment to the rights or legitimate
interests of a significant portion” of the hotel community.

8.25

The Objector contends, among other things, that the hotel community’s opposition to theApplication is “substantial” by virtue of the fact that its members – who provide tens of
thousands of hotels offering millions of hotel rooms in approximately 100 counties aroundthe globe – oppose the Application. Objection at 8. In addition, as noted above (¶ 8.7), both
HOTREC and AH&LA have filed letters formally supporting the Objection, and othertravel-related companies have likewise filed comments against the Application. Id. at 8-9;
new gTLDs application comments dated August/September 2012 (raising concerns about the
Application), Objection, Annex 12.

8.26

In light of the above, the Objector contends that the hotel community’s opposition to theApplication is “substantial”. For the reasons set forth below, I agree.

8.27

Section 3.5.4 of Module 3 of the Guidebook suggests that I “could balance a number offactors to determine whether there is substantial opposition” by the hotel community to the15!

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Application. These factors include (1) the number of expressions of opposition relative tothe composition of the community; (2) the representative nature of the entities expressing
opposition; (3) the level of recognized stature or weight among sources of opposition;(4) the historical defence of the community in other contexts; and (5) the costs incurred by
the Objector in expressing opposition, including other channels the Objector may have used
to convey opposition.
8.28

Through the Objector, the Application is opposed by seven of the world’s top-ten hotel
operators. The stature and weight of the Objector’s members in the hotel community cannot
be overstated. In addition, both HOTREC (which brings together 44 national associations
representing the interests of the hospitality industry, including hotels, in 27 European
countries) and AH&LA (which represents both individual hotel property members and hotel
companies in the US) formally support the Objection. Together, these entities represent theinterests of a broad range of hotel community members doing business in about 100
countries around the globe. In light of this, I consider the hotel community’s opposition to
the Application to be “substantial”.

8.29

The Applicant opposes this conclusion on the grounds that the Objector has failed toquantify the number of expressions of opposition relative to the composition of thecommunity. In light of this, the Applicant notes that it is impossible to compare the numberof expressions of opposition to the total number of entities within the community and assess
what proportion of the community they represent. Response ¶¶ 9.1, 9.5, 9.6; Additional
Response at 5. While the Guidebook suggests that such numbers could be a factor in myanalysis, it does not require that they be, and I consider the facts discussed above (¶ 8.28)
sufficient to establish the hotel community’s “substantial” opposition to the Application.

8.30

The Applicant likewise contends that the Objector has failed to put on sufficient evidence ofthe historical defence of the hotel community in other contexts and the costs it has incurredin expressing opposition. Id. ¶ 9.2. While the Guidebook likewise lists these as factors that
could be relevant to assessing whether community opposition is “substantial”, in the context
of this case, I do not find them so, as the facts discussed above (¶ 8.28) are sufficient toestablish the hotel community’s “substantial” opposition to the Application. The Objector’s
alleged failure to put on sufficient evidence with respect to these factors is accordingly
immaterial to my decision. The Applicant also objects to the Objector’s reliance on
opposition to the Application from entities that are not part of the hotel community. Id.
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¶ 9.3. This, however, I have not relied on in reaching my decision. The Applicant also
contends that the Objector has failed to put on evidence that each of its individual members
objects to the Application. Id. ¶ 9.4. As the Objector speaks on behalf of its members, I see
no basis to require such evidence. I note, however, that some of its members have in factdirectly expressed opposition to the Application in their own names. See Objection, Annex
12; Additional Submission at 3-4.
8.31

This brings me to the last element the Objector must prove to succeed on its Objection –namely, that the Application creates a “likelihood of material detriment to the rights orlegitimate interests of a significant portion” of the hotel community. Broadly speaking, theObjector contends that it does for two reasons. The first has to do with concerns overcybersquatting and similar intellectual property infringements, and the second with concernsthat members of the hotel community would not be able to register domain names in“.HOTELS”.

8.32

With respect to the Objector’s first concern, the Objector contends that “ICANN’s gTLD
program and its expansion of the number of gTLDs will likely exacerbate the problems thatits members have been fighting online for many years, including cybersquatting.” Objection
at 9; World Intellectual Property Organization (“WIPO”) statistics dated 18 February 2013
on areas of complaint activity, Objection, Annex 10; WIPO statistics dated 27 February
2013 on decided cases, Objection, Annex 11; WIPO Administrative Panel Decision, Case
No. D2009-1661, Inter-Continental Hotels Corp. v. Kirchhof, Objection, Annex 15.

8.33

The Objector understands ICANN’s commitment to expand the number of gTLDs, however,and does not object to all applications. Should ICANN decide to approve any of the ten“.HOTEL” or similar gTLD applications that have been filed, the Objector would prefer theapplication for “.HOTEL” that has been filed by HOTEL Top-Level-Domain SARL(“HTLDS”) because the application proposes to operate “.HOTEL” as a “closed registry
limited only to [. . .] the ‘hotel community’”. Objection at 10. The Objector states thatHTLDS has assured it that (1) “hotel community” is defined to exclude “‘any entity otherthan a hotel, hotel chain, or organization or association that is not formed or controlled byindividual hotels or hotel chains’”; (2) HTLDS staff will respond immediately to reports of
infringement and immediately suspend clear violations, including typosquatting andcybersquatting; and (3) HTLDS will reach out to the Objector’s members to more fully
protect their trademarks. Id.; see also new gTLDs comments dated 11 August 2012 (where17!

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the Objector conditionally supports the application of HTLDS), Objection, Annex 4; GAC
Early Warning dated 20 November 2012 from France (proposing that “.HOTELS” andsimilar strings be reserved to hotel businesses), Objection, Annex 20; letter dated March2012 from International Hotel & Restaurant Association to ICANN (endorsing theapplication of HTLDS), Objection, Annex 21; letter dated 20 March 2012 from AH&LA to
ICANN (same), Objection, Annex 22.
8.34

The Objector contends that, by contrast, the Applicant has taken the “preposterous position”
that it “would have the right to engage in cybersquatting on the long-standing and famous
hotel brands owned by Objector’s members.” Objection at 12. In support of this contention,
the Objector quotes from a section of the Application that states as follows:[The Applicant] shall claim to have a legitimate interest in these domain names,
as they are merely descriptive of the activities, products or services of [theApplicant]. So even if one or more of these domain names would be protectedby a registered trademark, held by a third party, it is likely that a claim under
the Uniform Dispute Resolution Policy or Uniform Rapid Suspension policy will
fail.
Application, Response, Annex 1 § 18(c); see Objection at 12.

8.35

With respect to the Objector’s second concern, the Objector contends that the Applicant’s
Application would harm the hotel community because the Applicant proposes to operate“.HOTELS” as a “single registrant TLD”. Id. at 10. In this regard, the Objector points to asection of the Application that states in pertinent part as follows:
At least during the initial months or even years following the delegation of the.hotels gTLD to [the Applicant], this extension is likely going to be a so-called“single registrant TLD” [. . .]. [A] “single registrant TLD” is a TLD where ‘(i)all domain name registrations in the TLD are registered to, and maintained by,Registry Operator for its own exclusive use, and (ii) Registry Operator does notsell, distribute or transfer control or use of any registrations in the TLD to any
third party that is not an Affiliate of Registry Operator.
Therefore, parties who are not [the Applicant] or – insofar and the extent [theApplicant] deems appropriate – an Affiliate within the meaning of the Registry
Operator Agreement will not be entitled to register domain names in the .hotels
gTLD.
Response, Annex 1 § 18(c); see Objection at 10.

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8.36

While single registrant TLDs may be appropriate in the case of a “dot-brand” (e.g.,“.GUCCI”), the Objector contends that they are inappropriate in the case of generic words –such as “hotels” – because they would make the gTLD “unavailable for the community it
should serve, to the community’s detriment.” Id. at 10. In other words, if the Applicant
were allowed to operate “.HOTELS” as proposed, the Objector and its members would beunable to register domain names such as “sofitel.hotels” or “hyatt.hotels” or“marriott.hotels” and would therefore “be unable to conduct business in the one gTLD thatis most directly related and beneficial to its business.” Id. at 10-11. See also Objection,
Annex 12 (raising concerns about the Applicant’s proposal to operate “.HOTELS” as aclosed gTLD); GAC Early Warnings dated 20 November 2012 from Australia and Germany(same), Objection, Annex 20. It is for this reason that such “closed” gTLDs have received
critical comment. See letter dated 31 January 2013 from Microsoft to ICANN (raisingconcerns with respect to closed gTLDs), Objection, Annex 16; letter dated 15 February 2013
from Retail Council of Canada to ICANN (same), Objection, Annex 18; letter dated
25 September 2012 from Kathryn Kleiman to ICANN (same), Objection, Annex 19.

8.37

The Objector contends that the Applicant’s proposal to operate “.HOTELS” as a closed
gTLD shows that it does not intend to act in accordance with the interests of the hotel
community, but rather only in accordance with its own interests. Objection at 13. The
Objector considers that such a situation would damage the reputation of the hotel
community. Id. at 12. Specifically, the Objector alleges that the Applicant’s operation of“.HOTELS” would “directly damage Objector and its members by excluding them from themost appropriate gTLD for their community, forcing Objector and its members to incur
significant additional expenses to properly inform the public about its official Internetpresences.” Id. The Objector contends that this is especially so as the hotel community
depends heavily on the DNS, as so many consumers now make their travel arrangements
online. Id. at 13; U.S. Consumer Online Travel Spending Surpasses $100 Billion for FirstTime in 2012, 20 February 2012, comScore.com, Objection, Annex 23; The Evolution of
Online Travel (Infographic), 28 February 2012, hotelmarketing.com, Objection, Annex 24;
Top 10 Hospitality Industry Trends for 2012, 22 December 2011, hotelmarketing.com,
Objection, Annex 25.

8.38

In light of the above, the Objector considers that it has proven that the Application creates a“likelihood of material detriment to the rights or legitimate interests of a significant portion”
of the hotel community. For the reasons set out below, I disagree.
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8.39

Section 3.5.4 of Module 3 of the Guidebook suggests that I could use several non-exclusive
factors in determining whether the Application creates a likelihood of material detriment to
the rights or legitimate interests of a significant portion of the hotel community. These nonexclusive factors are (1) the nature and extent of damage to the reputation of the hotel
community that would result from the Applicant’s operation of the gTLD “.HOTELS”;(2) evidence that the Applicant is not acting or does not intend to act in accordance with theinterests of the hotel community or users more widely, including evidence that the Applicant
has not proposed or does not intend to institute effective security protection for userinterests; (3) interference with the core activities of the hotel community that would result
from the Applicant’s operation of the gTLD “.HOTELS”; (4) dependence of the hotel
community on the DNS for its core activities; (5) the nature and extent of concrete or
economic damage to the hotel community that would result from the Applicant’s operationof the gTLD “.HOTELS”; and (6) the level of certainty that the alleged detrimental
outcomes would occur. In all events, an allegation of detriment that consists only of an
applicant being delegated the gTLD instead of an objector will not be sufficient for a findingof material detriment.

8.40

With respect to the Objector’s first concern about cybersquatting and the like, there is noevidence in the record that suggests that the Applicant considers it can engage incybersquatting at all, much less cybersquatting that would infringe the trademarks of the
Objector’s members. On the contrary, section 29 of the Application (Response, Annex 1)
sets forth the Applicant’s commitment to the protection of intellectual property rights andhow it intends to implement the mandatory rights protection mechanisms contained in the
Guidebook and detailed in Specification 7 of the draft New gTLD Registry Agreement –mechanisms that are specifically designed to combat cybersquatting, among otherinfringements.

8.41

Moreover, the quotation from the Application that the Objector sets forth to support its
cybersquatting allegation (supra ¶ 8.34) is taken out of context and does not support the
Objector’s position. In fact, taken in context, the quotation is further evidence of the steps
the Applicant would take to minimize the potential for trademark disputes with third parties
regarding domain names registered in the “.HOTELS” gTLD:

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[E]ven if only [the Applicant] will be entitled to register domain names, this does
not exclude the hypothesis that disputes may arise with one or more third parties
as regards domain names that are registered in the .hotels gTLD.
In order to avoid these risks, [the Applicant] intends to implement the following
policies and processes:
First, the domain names to be registered by [the Applicant] could relate to thefollowing:* registered trademarks of [the Applicant];* names of affiliates and/or hotel partners of [the Applicant];* names of departments within [the Applicant], and its subsidiaries;* etc.
Furthermore, [the Applicant] envisages registering a fair number of genericwords that are directly or indirectly related to the day-to-day business activities
and operations of [the Applicant] and its Affiliates.
Prior to effectively registering such domain names in the .hotels gTLD, [theApplicant] will require its legal department to review the list of these domainnames on a regular basis in order to satisfy itself that they will not infringe therights of third parties.
In any case, [the Applicant] shall claim to have a legitimate interest in these
domain names, as they are merely descriptive of the activities, products orservices of [the Applicant]. So even if one or more of these domain names would
be protected by a registered trademark, held by a third party, it is likely that aclaim under the Uniform Dispute Resolution Policy or Uniform Rapid
Suspension policy will fail.
Response, Annex 1 § 18(c).
8.42

The Objector has similarly failed to prove any likely material detriment to the hotel
community flowing from the Applicant’s proposal to operate “.HOTELS” as a closed gTLD.
As a preliminary matter, I note that, in trying to prove material determent, the Objector has
contended that the “.HOTEL” application filed by HTLDS is preferable to other applications
for identical or similar gTLDs – including the Application at issue here for “.HOTELS” –because the former will better serve the interests of the hotel community. See supra ¶ 8.33.
A Community Objection, however, is not the avenue for determining the relative merits ofdifferent gTLD applications, and nothing in the four-part test set out in section 3.5.4 ofModule 3 of the Guidebook suggests that it is. The alleged relative merits of other gTLD
applications are accordingly not material to my determination of the Objection at issue here.

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8.43

More importantly, since the Objector filed its Objection, Specification 11 of the draft New
gTLD Registry Agreement has been revised. Specifically, paragraphs 3(c) and 3(d) of thatSpecification now provide in pertinent part as follows:(c) Registry Operator will operate the TLD in a transparent manner consistent
with general principles of openness and non-discrimination by establishing,publishing and adhering to clear registration policies.
(d) Registry Operator of a “Generic String” TLD may not impose eligibility
criteria for registering names in the TLD that limit registrations exclusively
to a single person or entity and/or that person’s or entity’s “Affiliates”[. . .]. “Generic String” means a string consisting of a word or term that
denominates or describes a general class of goods, services, groups,
organizations or things, as opposed to distinguishing a specific brand ofgoods, services, groups, organizations or things from those others.
Draft New gTLD Registry Agreement dated 2 July 2013. These provisions castconsiderable doubt on whether the Applicant would be able to operate “.HOTELS” as aclosed gTLD, as it has proposed. It is accordingly far from certain that the Applicant would
be able to exclude members of the hotel community from registering domain names in“.HOTELS” and cause them the alleged detriment the Objector foresees.

8.44

In addition, the Objector has failed to prove any material detriment the hotel community
would likely suffer in the (unlikely) event the Applicant were permitted to operate“.HOTELS” as a closed gTLD. The most the Objector has done in this regard is to allege
that, if the Objector and its members cannot register domain names in “.HOTELS”, this will
force the “Objector and its members to incur significant additional expenses to properly
inform the public about its official Internet presences.” Objection at 12. This is insufficient
to meet the Objector’s burden of proof on this issue.

8.45

In this regard, it is unclear to me why the Objector contends that the Applicant’s operating“.HOTELS” as a closed gTLD would likely cause material detriment to itself. To make out
its Objection, the Objector must prove that the Application creates a “likelihood of material
detriment to the rights or legitimate interests of a significant portion” of the hotel
community, not to itself. And while the Objector serves the interests of the hotel
community, it is not synonymous with that community and does not operate any hotels. It istherefore not clear why it would want to register a domain name in “.HOTELS” or how its
inability to do so would cause it additional expense. I also note that, although the Objector
registered the domain name “hotelconsumerprotectioncoalition.org” in 2006 (see Whois
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output dated 6 June 2013, Additional Submission, Annex A), the Objector does not seem touse it. Moreover, users trying to access that domain name bounce to “ihg.com” – thewebsite for IHG. See Response, Annex 4. In these circumstances, the Objector’s alleged
desire to “properly inform the public about its official Internet presences” is far from clear.
8.46

The Objector has similarly failed to prove that the Applicant’s operating “.HOTELS” as aclosed gTLD would likely cause material detriment to its members. Again, the issue iswhether the Application creates a “likelihood of material detriment to the rights or legitimate
interests of a significant portion” of the hotel community. However, even assuming that the
Objector’s members themselves constitute a “significant portion” of the hotel community,
the Objector has not even explained (much less proven) how their inability to registerdomain names in “.HOTELS” would cause them to incur additional expense with respect totheir Internet presences. The absence of any evidence in this regard is striking, particularly
as it would seem that, if anything, the opposite is true: the Objector’s members would incur
additional expense if they were to expand their Internet presences by registering domainnames in “.HOTELS”.

8.47

Having said this, I agree with the Objector that the Applicant’s proposal to operate“.HOTELS” as a closed gTLD indicates that it intends to act in accordance with its own
interests, not those of the hotel community. But the Objector’s members and other membersof the hotel community already have many avenues through the DNS to have a presence on
the Internet – avenues the Objector’s members and many others in the hotel community
already exploit. So while the Objector’s members and others in the hotel community mightwant to register domain names in “.HOTELS” if it is delegated, it is not clear what themarginal benefit of doing this would be worth to them, if anything.7 The Objector has
simply put on no evidence of the nature or extent of any concrete or economic damage to thehotel community that would result from the Applicant’s operating “.HOTELS” as a closed
gTLD.

8.48

The Objector has similarly failed to offer any evidence to support its conclusory allegationthat the Applicant’s operating “.HOTELS” as a closed gTLD would damage the reputationof the hotel industry. Nor has it alleged what the nature and extent of that purported damage

7

In this regard, I note that the fact that the Objector would prefer that ICANN not have a
new gTLD program suggests that it does not see much benefit to the hotel community inbeing able to register domain names in new gTLDs. See Objection at 9-10.
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would be. Similarly, the Objector has also not alleged that the Applicant’s operating“.HOTELS” as a closed gTLD would interfere with the core activities of the hotel
community, even though the hotel community is increasingly dependent on the DNS.
8.49

For these reasons, I find the Objector has failed to prove that the Application creates alikelihood of material detriment to the rights or legitimate interests of a significant portion of
the hotel community.

9. COSTS
9.1

Pursuant to article 14(e) of the Procedure, upon the termination of the proceedings, after I
have rendered my determination, the Centre shall refund to the prevailing party its advancepayment of costs. See also Procedure, article 21(d).

9.2

As I have decided to dismiss the Objection, the Applicant is the prevailing party in theseproceedings. The Centre shall accordingly refund to the Applicant its advance payment ofcosts.

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