International Centre for Dispute Resolution
New gTLD String Confusion Panel

Re: 50 504 000251 13
Commercial Connect LLC,OBJECTOR
andHalf Falls, LLC,APPLICANT
String: <.supply>

EXPERT DETERMINATION
The parties
The Objector is Commercial Connect LLC(1418 South 3rd Street, Louisville, KY 40208)and is represented byJeffery S. Smith(same address) - JSmith@dotshop.com.
The Applicant is Half Falls, LLC(10500 NE 8th Street Suite 350 Bellevue, WA 98004)and is represented by John
M. Genga Esq. and Don Moody of New gTLD Disputes(15260 Ventura Boulevard Suite 1810 Sherman Oaks, CA
91403)-jgenga@ newgtlddisputes.com and don@newgtlddisputes.com.
The New gTLD String Objected To
The new gTLD string applied for and objected to is: <.supply>
Prevailing Party
The Applicant has prevailed and the Objection is dismissed.
The New gTLD String Confusion Process
Module 3 ofthe ICANN gTLD Applicant Guidebook ("the Guidebook') contains Objection Procedures and the
New gTLD Dispute Resolution Procedure ("the Procedure).
Article 1(b) ofthe Procedure states that"The new gTLD program includes a dispute resolution procedure, pursuant
to which disputes between a person or entity who applies for a new gTLD and a person or entity who objects to thatgTLD are resolved in accordance with this New gTLD Dispute Resolution Procedure.
As expressed in the Guidebook, and the Procedure, there are four(4)grounds to object to the registration of newgTLDs. One ofthese grounds expressed String Confusion, as described in the Procedure Article 2(e)(i): "(i)'String
Confusion Objection' refers to the objection that the string comprising the potential gTLD is confusingly
similar to an existing top-level domain or another string applied for in the same round of applications."
Article 3(a) states that "String Confusion Objections shall be administered by the International Centre for Dispute
Resolution".

Procedural History of this CaseOn October 11,2000, Commercial Connect LLC(the Objector)filed an unsponsored TLD application with ICANN
for, inter alia,.shop. This application was supplemented by a new gTLD application to ICANN by the Objector onJune 13,2002 for .shop (Application ID: 1-1830-1672).
Half Falls, LLC (the Applicant) filed a new gTLD application with ICANN on June 13, 2012 for .supply(Application ID: 1-1591-23028).
On or about March 18,2013,the Objector filed a gTLD String Confusion Objection to the gTLD application ofthe
Applicant for .supply on the ground that"The gTLD filed by Half Falls, LLC so nearly resembles the .shop TLD
that it is probable that confusion will arise in the mind ofthe average, reasonable intemet user because the .supply
gTLD application is similar either visually, aurally or has a similar meaning".
In the initial administrative review ofthe Objection by the ICDR, deficiencies were noted. Following a further
submission by the Objector, a further administrative review was conducted, and on April 11,2013, the ICDR notedthat the deficiencies had been rectified and the Objection was registered for processing as complying with Article 58 ofthe Procedure.
On April 17,2013 the Applicant was advised that it shall file a response to the Objection within 30 days from thatdate.
The response to the Objection was delivered in a timely way, and on May 24, 2013 was noted as complying with
Article 11 ofthe Procedure and the applicable Dispute Resolution Service Provider Rules (the DRSP Rules).
On June 17,2013 I was appointed as the Expert to determine the validity ofthe Objection, and the parties were to
submit comments and challenges, if any, to the appointment by June 20,2013. No comments or challenges to myappointment were received.
On August 21, 2013,the Objector sought leave to make an additional submission. Permission being granted, theadditional submission was submitted on September 20, 2013,to which the Applicant replied on October 3,2013.
Basis for Objector's Standing to Object based on String Confusion
As appears from its 2000 application and its June 13,2002 new gTLD application, the Objector has a lengthy historyof efforts to bring the .shop gTLD to the Internet. It bases its standing to object on the Guidebook s. 3.2.2, on the
grounds of string confusion with respect to any application that uses words (in whatever language)that have similar
meaning to "shop". It takes the position that the string .supply put forward by the Applicant has such a similar
meaning because it so "nearly resembles the .shop TLD that it is probable that confusion will arise in the mind ofthe
average, reasonable intemet user because the 1DN for eshop gTLD application is similar either visually, aurally or
has a similar meaning".
As such, the Objector, in my view, has standing to object based on the allegation of string confusion.
Factual BackgroundAs noted,the Objector has a long history of proposing the gTLD of.shop, dating back to 2000. It claims that .shop
is globally recognized and exists "in excess of20 different languages, all with the same meaning 'a building or room
stocked with merchandise for sale — a store'.
The Objector claims that over the last several years it has been active and successful in obtaining supporters for what
it describes as its ".shop cause". It claims there are in excess of 15,000 members,representing over $650 trillion in
annual revenues, that support its application.

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The Applicant is a subsidiary of Donuts Inc., both American corporations. Donuts Inc., through its subsidiary suchas the Applicant, has applied for 307 New gTLDs,including .supply. It notes in the material supporting its
application that:"Along with other TLDs in the Donuts family, this TLD will provide Internet users with opportunities foronline identities and expression that do not currently exist. In doing so, the TLD will introduce significant
consumer choice and competition to the Internet namespace — the very purpose ofICANN's new TLD
program."
Before this Objection reached the Procedure, there was an Initial Evaluation under Module 2 ofthe Guidebook,which did not result in the two strings (.shop and .supply) being put into a string contention set, thus allowing the
Objector to register its Objection in the Procedure. I will deal in detail with the effect of this circumstance in thediscussion in the Discussion and Findings section ofthis Expert Determination.
Parties' Contentions(a) Objector
The Objection is stated in general terms as set out above. The Objector filed a document described as a Dispute
Resolution Objection, which contains a general review ofthe history ofthe application for the .shop TLD and therequirements for an application and a string confusion dispute. On page 5 the following appears:,so nearly resembles the .shop TLD that it is probable
The gTLD filed bythat confusion will arise in the mind ofthe average, reasonable internet user because thegTLD application is similar either visually, aurally, or has a similar
meaning.
In the document headed "Additional Claim Infoi!nation", the Objector notes a variety of words that have
similar meanings to shop:
AgencyBoutiqueBureauChain
Deli
Department store
Emporium
Five-and-dimeMallMarketMart
Mill
OfficeOutletServiceShowroom
Stand
Store
Supermarket
The Objector then sets out the basis for standing and claims that"The gTLD filed by Half Falls, LLC,so
nearly resembles the .shop TLD that it is probable that confusion will arise in the mind ofthe average,
reasonable internet user because the IDN for eShop gTLD application is similar either visually, aurally, or
has a similar meaning".
In its objection, the Objector refers to a variety of Sections ofthe Guidebook, including Sections 1.1.2.10,
2.2, 2.2.1.1 and 2.2.1.2 and includes extracts from what appears to be earlier versions of what became
either the Guidebook or the Procedure. [The references to Section 2 are to the Initial Evaluation.]

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The Objector takes the position that visual, aural and meaning confusion should be considered whenevaluating string confusion.
The Objector provides no evidence in support ofthe Objection, other than its own. June 2012 application
for the gTLD .shop and its unsponsored October 2000 application.
In its additional submission, the Objector requests that the Applicant's gTLD be placed in the samecontentious set as the Objector's gTLD "because they have a confusingly similar meaning, so that theString Contention Procedures in Module 4 ofthe Guidebook will be invoked".
(b) Applicant's Response
The Applicant responds under a number of headings, which I list below, and will expand upon in the Discussion andFindings section ofthis Expert Determination:a) Objector does not fully state the basis for its standing to object:This is a procedural objection based on deficiencies in the Objection.
b) Objector fails to prove the substantive elements required for its Objection:
This ground relates to the failure ofthe Objector to provide evidence to justify the burden of proofthat restson it to demonstrate the probability, as opposed to the possibility, that confusion will arise in the mind of
the average,reasonable Internet user.
The Applicant supplements this submission with certain particulars:i. Objector does not prove ".shop" and ".supply" are so similar in appearance as to result ina likelihood ofInternet user confusion;
ii. Objector does not prove the words "shop" and "supply' are so similar in sound as toresult in a likelihood ofInternet user confusion.
iii. Objector does not prove the words "shop" and "supply' are so similar in meaning as toresult in a likelihood ofInternet user confusion.
iv. The Objection fails to show the high level of similarity needed to succeed.
c) The Objector makes irrelevant arguments.
In its response to the additional submission,the Applicant repeats and enlarges on its submission that no similarity
ofany kind has been shown to exist between .supply and .shop, either aural, visual or in meaning, so as to satisfy theonus on the Objector.
Discussion and Findingsa) The Procedural Objection
The procedural objection by the Applicant is primarily based on the result ofthe Initial Evaluation on the basis that
the Objector's string was not placed in a contention set. I do not accept this submission, as it overstates the effect of
the Initial Evaluation, which I will discuss under the heading of"Initial Evaluation".
b) The Standard and the Burden ofProof
The issue in this Expert Determination is whether the applied for gTLD string(.supply) is likely to result in string
confusion with the Objector's proposed string (.shop).
The Guidebook s. 3.5.1 defines String Confusion Objection and the standard to be applied on the Expert
Determination as follows:4A DRSP panel hearing a string confusion objection will consider whether the applied-for gTLD string islikely to result in string confusion. String confusion exists where a string so nearly resembles another that it
is likely to deceive or cause confusion. For a likelihood of confusion to exist, it must be probable, notmerely possible that confusion will arise in the mind ofthe average, reasonable Internet user. Mereassociation, in the sense that the string brings another string to mind, is insufficient to find a likelihood ofconfusion.
The Procedure Article 2(e)(i) defines a string confusion objection as "the objection that the string comprising thepotential gTLD (in this case .supply) is confusingly similar to ... another string applied for in the same round of
applications"(in this case .shop).
The Guidebook s. 3.5 provides that "the objector bears the burden of proof in each case".
Article 20(c)ofthe Procedure provides that "the Objector bears the burden of proving that its objection should besustained in accordance with applicable standards that have been defined by ICANN"(in this case s. 3.5.1 ofthe
Guidebook, quoted above).
Thus, there is a presumption in favour of granting new gTLDs to applicants who satisfy the requirements. The
burden of proof on the Objector is the civil standard ofa balance of probabilities. It may be stated as follows: has
the Objector demonstrated that it is more likely than not that there will be string confusion as defined?
c) The Initial Evaluation
The Initial Evaluation is provided for in s. 2.2 of Module 2 ofthe Guidebook, under the heading "String Review". It
is described as a "first review" focusing on "whether the applied-for gTLD string is so similar to other strings that it
would create a probability of user confusion".
S. 2.2.1.1 describes the Initial Evaluation as a "preliminary comparison of each applied for gTLD string" against,
inter alia, other applied for strings. The objective is "to prevent user confusion and loss of confidence in the DNS
resulting from delegation of many similar strings". The section notes the definition of"similar" for purposes ofthe
Guidebook. It adds "[T]he visual similarity check that occurs during Initial Evaluation is intended to augment theobjection and dispute resolution process that addresses all types of similarity".
S. 2.2.1.1.1 describes the String Similarity Panel's task as "to identify visual string similarities that would create aprobability of user confusion".
With respect to applied for gTLD strings, the task is described as "[A]11 applied-for gTLD strings will be reviewed
against one another to identify any similar strings. In performing this review, the String Similarity Panel will create
contention sets that may be used in later stages ofevaluation".
The Review Methodology provided for in s. 2.2.1.2 is important and I quote it in full(footnotes omitted):
The String Similarity Panel is informed in part by an algorithmic score for the visual similarity between
each applied-for string and each of other existing and applied for TLDs and reserved names. The score will
provide one objective measure for consideration by the panel, as part ofthe process of identifying strings
likely to result in user confusion. In general, applicants should expect that a higher visual similarity scoresuggests a higher probability that the application will not pass the String Similarity review. However, it
should be noted that the score is only indicative and that the final determination of similarity is entirely up
to the Panel's judgment.
The algorithm, user guidelines, and additional background information are available to applicants fortesting and informational purposes. Applicants will have the ability to test their strings and obtainalgorithmic results through the application system prior to submission ofan application.
The algorithm supports the common characters in Arabic, Chinese, Cyrillic, Devanagari, Greek, Japanese,
Korean, and Latin scripts. It can also compare strings in different scripts to each other.

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The panel will also take into account variant characters, as defined in any relevant language table, in its
determinations. For example, strings that are not visually similar but are determined to be variant TLD
strings based on an IDN table would be placed in a contention set. Variant TLD strings that are listed aspart ofthe application will also be subject to the string similarity analysis.
The panel will examine all the algorithm data and perform its own review ofsimilarities between strings
and whether they rise to the level of string confusion. In cases of strings in scripts not yet supported by thealgorithm, the panel's assessment process is entirely manual.
This portion ofthe section concludes by providing that the panel will use the common standard to test for string
confusion quoted earlier in these reasons.
S. 2.2.1.1.3 deals with Outcomes ofthe String Similarity Review. The relevant portions are:An application for a string that is found too similar to another applied-for gTLD string will be placed in acontention set.
An application that passes the String Similarity review is still subject to objection by an existing TLD
operator or by another gTLD applicant in the current application round. That process requires that a string
confusion objection be filed by an objector having the standing to make such an objection. Such categoryof 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. Refer to Module 3, Dispute
Resolution Procedures, for more information about the objection process.
It is thus apparent that the Initial Evaluation is primarily a preliminary review, focusing on visual string similarity,
for the purpose of determining whether, as relevant to this case, two applied-for strings should be placed in acontention set. Where, as here, that was not the result ofthe Initial Evaluation, it is open to an applicant to file astring confusion objection and such an objection is not limited to visual similarity, but rather, confusion based on
any type ofsimilarity, including visual, may be claimed by an objector. This is sufficient to dispose ofthe
procedural objection by the Applicant.
Thus, in my view,that the Initial Evaluation did not find visual string confusion between .shop and .supply, such as
to result in a contention set, is relevant, but not conclusive, with respect to the issue of visual similarity in a string
confusion objection, but otherwise the Initial Evaluation has no other relevance to the resolution ofthe Objection.
d) The Issues of Visual and Phonetic Similarity
The Objector provides no evidence of visual or aural similarity, except for the conclusory statement that "the .supply
gTLD is similar either visually, aurally or has a similar meaning" to .shop.
The Applicant makes a number of arguments to meet the suggestion of visual and aural similarity, which I need notdetail because it is abundantly clear that there is no such similarity. The Applicant notes that the ICANN String
Similarity Panel did not find confusion probable after performing a manual visual similarity check and that thealgorithmic similarity score obtained for the String Visual Similarity Assessment Tool yielded a score of31%,justabove the minimum level to be cited of30%. As I noted earlier, this is a relevant, but not a conclusive, element on
the issue of visual similarity.
The Applicant notes the completely different pronunciations ofthe words "shop" and "supply". No evidence isneeded to conclude that there is no aural or phonetic similarity between the two words.
I have no difficulty in concluding that there is no visual, aural or phonetic similarity between .shop and .supply thathas even the potential to cause confusion among Internet users acting reasonably, let alone the probability ofsuch
confusion.
e) The Issue of Similarity of Meaning
The Objector provides no evidence of a similarity of meaning between the words "shop" and "supply", except forthe conclusory statement that similarity exists.

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In its gTLD Application, it notes that ".shop is globally recognized and exists in excess of20 different languages allwith the same meaning: 'a building or room stocked with merchandise for sale: a store.'"In the Objection it lists a number of words which it claims to have a "similar meaning to shop", which are listed
earlier in this Expert Determination. It is noteworthy that "supply" is not one ofthe words listed as having a similar
meaning to "shop".
In its additional submission, the Objector uses as an example of probable confusion an internet user searching forpurchases ofplumbing parts, confronted by "plumbing.supply" and "plumbing.shop", and adds other similar
examples (e.g."house.supply" and "house.shop").
The Applicant responds by noting a number of definitions of the word "supply", including "provide for","makeavailable for use","furnish" and several others. It notes that the word "shop" means, inter alia, "establishment; astore',"a place for the repair ofgoods or material", or as a verb "to make a search or to hunt through a market insearch of a best buy'. It notes that "[w]hen one shops for a supply, one is the buyer. When they supply for a shop,
they are the sellers". It denies that there is any possibility of confusion, based on lack of visual or aural similarity,and dissimilar meanings.
At its highest, there is at most a potential for the word "shop" to bring to mind the word "supply' or the reverse. But
this is at best an association, and the Guidebook s. 3.5.1 provides in part"mere association in the sense that thestring brings another string to mind, is insufficient to find a likelihood of confusion".
In my opinion, there is not sufficient similarity in meaning between the words "shop" and "supply'to cause aprobability ofconfusion in the mind ofthe average, reasonable Internet user. The Objector has failed to meet theonus on it to prove string confusion as defined in the Guidebook.
Other Arguments
In its additional submission, the Objector asks that the two gTLDs be placed in the same contention set, so that theprocedures set forth in Module 4 ofthe Guidebook will be invoked.
I noted earlier that the String Similarity Panel that performed the Initial Evaluation declined to place these two
gTLDs in a contention set, thus resulting in the reference to an Expert Panel under Section 3(Module 3)ofthe
Guidebook.
Myjurisdiction is to sustain or dismiss the Objection. Module 4 deals with string contention procedures, andappears to apply (inter alia) if competing strings are placed in a contention set in the Initial Evaluation (s. 4.1)or
where the Expert Determination under Module 3 finds in favour ofthe Objector (s. 4.1.2). Neither precondition
exists here, but in any event, I have no jurisdiction to put applications for gTLDs in a contention set.
The Objector notes what it says is the wide support for "our .shop cause" to provide a safe and secure eCommerce
experience. I do not find that this is a relevant consideration to the issue I am to decide.
The Applicant refers to its intention, along with the other TLDs in the Donuts family,to "provide Internet users with
opportunities for online identities and expression that do not currently exist", and "introduce significant consumer
choice and competition to the Internet namespace".
While these are no doubt laudable goals, they are not relevant to the task before me.
Analysis
The Objector bears the onus of proving on the balance of probabilities that .supply so nearly resembles .shop that it
is likely to deceive or cause confusion in the mind ofthe average, reasonable Internet user.
Given my findings on the lack of visual similarity, also evidenced by the result ofthe Initial Evaluation, the lack ofphonetic or aural similarity, and the lack of similarity of meaning, except for the mere possibility ofan association
between the two words, the Objector has failed to meet the burden of proof which it bears. To my mind,the co-7existence of.shop and .supply in the DNS is not capable ofcausing user confusion or a loss ofconfidence in the
DNS.
Determination
Therefore, the Applicant has prevailed and the Objection is dismissed

Octobe,2013

Earl A. C miak, Q.C.
Sole Exert Panelist8