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Famous Four vows to fight .sport objection loss

Kevin Murphy, October 31, 2013, 19:37:06 (UTC), Domain Registries

Famous Four Media has promised to pursue “all available legal avenues” after losing a Community Objection over the .sport gTLD to its Olympic-backed rival.
The portfolio applicant lost out to SportAccord in an October 23 decision by International Chamber of Commerce panelist Guido Santiago Tawil, meaning its .sport application should be rejected by ICANN.
But Famous Four says it’s not over yet. In a statement today, the company said:

Famous Four Media shall pursue rigorously all available legal avenues available to it to have the decision independently reviewed by ICANN and/or others as the case may be, and reversed.

The logical first step of such a threat would be a Reconsideration Request, a relatively cheap way to challenge an ICANN decision with a virtually zero chance of succeeding.
That could be followed by a demand for an Independent Review Panel procedure, which would take much longer and cost significantly more. When ICM Registry won an IRP, the bill ran to millions.
Or Famous Four could try its luck in the courtroom, which could be flustered by the fact that all new gTLD applicants had to sign fairly one-sided legal waivers when they applied.
So what’s the company so worked up about?
It’s lost the chance to run .sport, because the ICC panelist ruled that SportAccord, which is backed by the International Olympic Committee and dozens of official sporting associations, represents the “sport” community and would be harmed if Famous Four were to run the TLD.
Famous Four had argued in its defense that SportAccord can only purport to represent a “subset” of this community — its sporting organization members — rather than everyone who has an interest in sport.
Rather amusingly, in its statement today, FFM linked to the IOC’s own marketing, which bears the slogan “Sport Belongs to All”, to prove its point:

it is Famous Four Media’s unshakable belief that this statement is true and just and that is why Famous Four Media applied for an open TLD – a top level domain that is open to everyone and offered to everyone on a level and equitable basis. Trying to claim ownership and representation of sport is akin to claiming representation for the human race.

An alternative reading would be to state that the IOC’s marketing slogan is, like all marketing slogans, bullshit.
But it actually cuts to the heart of the case itself, which Guido Santiago Tawil found in favor of SportAccord, writing:

The ICANN Guidebook does not require that an “entire” community agree on an objection to an application. In fact, it would be almost impossible for an institution to represent any community as a whole. If such was the requirement, there would be no reason to provide for the possibility of community objections.
It is difficult to imagine which other association may claim representation of the Sport Community besides an institution that represents, as Objector does, more than a hundred well-known sports federations and institutions related to sports.

Another key, and related, factor Community Objection panelists have to consider is whether a community is “clearly delineated”.
It’s here where the arguments that an applicant can use to win a Legal Rights Objection seem to fail under Community Objection scrutiny.
Famous Four said that “sport” is not clearly delineated along the lines defined by SportAccord — ie, members of its federations — because it doesn’t allow, say, hobbyists or the media to get involved.
Similar arguments were made in LROs.
Applicants regularly defended themselves against LROs — where the objector owns a trademark rather than purporting to represent a community — by pointing out all the non-infringing uses of the string.
That defense apparently doesn’t work in Community Objections, with the .sport ICC panelist ruling:

The fact that the media (which may constitute a different community) or viewers are unable to be part of this association is irrelevant to consider Objector as a delineated community. Otherwise, no community could be recognized under the ICANN gTLD proceedings since it would be easy for any Applicant to find secondary or not closed-related members outside of it.

In its response to the ruling today, FFM called this a “non sequitur”, adding:

It is not difficult to conceive of communities which are exclusive, and in all cases these do not consist of generic words like “sport.” One example already given by other commentators might be “.yorkuniversity.”

Another key pivot point in the .sport decision is “detriment”.
Objectors have to prove the “likelihood of material detriment to the rights or legitimate interests of a significant portion of the community to which the string may be explicitly or implicitly targeted.”
The panelist in this case chose to interpret this as “future ‘possible’ damage”, which he said was quite a low bar.
His reasoning, in finding that detriment to SportAccord was likely, seems to hinge quite a bit on the fact that SportAccord has also applied for the same gTLD.
While seemingly discarding “hypothetical” arguments about cybersquatting and such in an open-registration .sport gTLD, he said he “shares Objector’s argument that all domain registrations in a community-based ‘.sport’ gTLD will assure sports acceptable use policies.”
That thinking only works, I think, if you also have a community-based .sport application on the table.
As FFM characterized it today: “What he is in effect saying is that the .SPORT gTLD should be delegated: just not to dot Sport Limited. This was not his decision to make.”
This week at the conference in Munich I spoke to several people who believe some of the highly contested, super-premium new gTLDs will take years to resolve.
It seems that .sport is going to be one of those.
Under the ICANN rules, FFM is supposed to withdrawn its application now. That’s clearly not going to happen.

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Comments (4)

  1. These are some interesting statements from Famous Four which has a lot of us baffled with amazement.
    Under that token we vow to react in the same manner in regards to the unacceptable LRO decisions. I find it quite self-serving and amusing for Famous Four to come out and call others “hijackers” when they are doing the same thing themselves piggybacking others’ years of work on other strings. The LRO decisions were a complete joke but you do not see Famous Four saying otherwise. Where is the consistency?
    Most of these portfolio guys are all about greed. They do not care for the public interest, diversity or any accountability. They want all the strings for themselves and no-one else.
    And if they lose they want to circumvent the ICANN process and engage in private auctions which were NOT part of the guidebook to enrich themselves.
    So in one hand Famous Four creates community Governance Councils but on the other hand they trash the concept of “community”? Really?
    Trying to launch an “open” sensitive TLD without enhanced safeguards or any accountability to your community is not in the public interest. We all know it.
    So if there is no community, why create Governance Councils for .MUSIC, .SPORT etc? This reaction by Famous Four has zero credibility. There is a true community and these organizations have standing to object because they do represent a significant portion of that community.
    Portfolio guys should be happy with all the uncontested strings they won. Do not bite the hand that feeds you I say if you have other strings launching.
    The cases of .POLO, .SPORT and .ARCHITECT showcase the essence of not allowing “open” applications without enhanced safeguards and appropriate governance structure and use policies or completely closed monopolistic applications with exclusionary policies preventing legitimate community members was highlighted. Accountability and the community aspect is crucial.
    Some diversity and the community model is an asset to the new gTLD program. The quicker some portfolio applicants realize this the better. However for them it is all about ROI. They will say anything to get their way and make their story work.
    My 2 cents.

  2. Music Fan says:

    Roussos strikes again!!
    The upholder of truth and justice in the TLD world, Roussos again lashes out against the “evil portfolio applicants” and their insidious “profit-motives”!
    “Dare they apply to run a business!”, he was heard saying (in the comments section) to a captive domainincite readership.
    It is believed that Roussos will distribute .Music names completely free to the needy members of his personal music “community” (which also contains singing crickets and wailing coyotes). He himself will live off the positive vibes that .Music registrants will send to him.
    It is also rumored that Roussos wasn’t charged for financial evaluation part of the program, since his application does not contain a revenue plan.
    My 2 musical notes!!

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