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Four governments file ICANN appeals over .wine

Kevin Murphy, April 9, 2014, 09:07:59 (UTC), Domain Policy

France, Spain, the UK and the European Commission have formally appealed ICANN’s decision to allow the .wine and .vin new gTLD applications to proceed.

In doing so, they’ve become the first national governments to file Requests for Reconsideration with ICANN since the process was introduced in 1999.

All four governments are demanding that ICANN take another look at its March 22 resolution in which it said .wine and .vin could be taken off hold and proceed through the remainder of the new gTLD process.

The four applications in question (three for .wine, one for .vin) have been frozen since the Beijing meeting a year ago, at which the Governmental Advisory Committee said it needed more time to consider them.

European nations, with some Latin American support, think that wine-related gTLDs should not be approved unless the applicants agree to give special protection to geographic indicators, such as “Champagne”.

The RfRs are all, as you might expect, a bit “inside baseball”, focusing on the minutiae of ICANN’s bylaws.

What’s illegal and what isn’t?

A key concern is that ICANN’s New gTLD Program Committee, in passing the resolution, relied in part on an analysis of the legal issues (pdf) conducted by French law professor Jerome Passa.

Passa concluded that there’s nothing under the law to prevent ICANN assigning .wine to Donuts, one of the applicants, because “wine” is not a protected GI string.

As regards the applications for the assignment of the new gTLDs ‘.vin’ and ‘.wine’ filed by the Donuts company, there is no rule of the law of geographical indications, nor any general principle which obliges ICANN to reject the applications or accept the applications under certain specific conditions.

From my reading of Passa’s opinion, a domain name containing a GI would only be illegal if it was used to sell counterfeit wines.

For example, it would be perfectly okay for a Chinese registrant to own champagne.wine if he used it to sell genuine champagne from Champagne, but it would be uncool if he used it to sell champagne-style sparkling wine.

Passa doesn’t seem to think it would be necessarily illegal for a registry to sell that domain, or for ICANN to delegate a .wine gTLD that could possibly be abused by said registrant in future.

The four governments are not so much concerned by his legal arguments (though they do disagree with them), but rather by the fact that the GAC was not shown Passa’s opinion before the NGPC made its decision

Under section XI-A of ICANN’s governing bylaws, the GAC “shall have an opportunity to comment upon any external advice received prior to any decision by the Board.”

By not giving Passa’s analysis to the GAC prior to its March 22 resolution, the NGPC violated ICANN’s bylaws, the four governments argue.

However, ICANN has already responded to this argument and others, suggesting that the four new RfRs may already be dead in the water.

In a resolution last Thursday the NGPC stated that the bylaws were not broken because the requirement to show the GAC “external expert advice” only applies when the board is determining matters of policy.

An explanation of last week’s NGPC decision says:

the NGPC has concluded that there was no process violation or procedural error under the Bylaws, particularly because the Independent Legal Analysis was not sought as External Expert Advice pursuant to Article X1-A, or any other Bylaws provision. Rather, the Independent Legal Analysis was sought pursuant to Module 3.1 of the Applicant Guidebook, and partly at the GAC’s suggestion.

Basically, it’s round two the old “policy versus implementation” debate, in which the ICANN board and GNSO Council have regularly sparred, kicking off with new opponents.

Spain argues in its RfR that the bylaws “the supreme governing rules” of ICANN, apply to implementation matters too and that there’s “no legal basis” for ICANN’s finding that they only apply to policy.

It further notes that a legal analysis of the related .amazon new gTLD controversy, also written by Passa, has been circulated to the GAC for comment as per the bylaws.

Disturbing views on “consensus”

In order for an RfR to be successful, complainants have to show that the ICANN board or NGPC did not consider all the evidence they should have at the time of their decision.

The governments are only slippery ground here, as all they can seem to point to are the barrage of letters that have been sent to ICANN by wine producers, associations and governments over the last year or so.

It may not have mentioned each one explicitly in its resolution but it’s very unlikely, in my view, that the NGPC was not aware of these letters when it made its call.

More significantly, these objecting governments are arguing that the NGPC was misled by GAC chair Heather Dryden about the extent of “consensus” in the GAC with regards .wine and .vin.

Dryden told ICANN in a September 9, 2013 letter that the GAC had not reached a consensus to object to the two new gTLDs, so they could proceed.

It appeared that the GAC — with members such as the US, Canada and Australia disagreeing with Europe — had simply hit an immovable brick wall in its talks, so consensus was never going to be reached.

France states in its RfR that the Dryden letter was sent without first consulting the GAC:

The GAC Chair’s statement that “The GAC has finalised its consideration of the strings .wine and .vin and further advises that the applications should proceed through the normal evaluation process” is not a consensus view of the GAC as per the aforementioned Operating Principle, but a mere interpretation and opinion of the GAC Chair.

Where France’s opinion, which seems to match previous statements by the European Commission, gets disturbing is in its interpretation of what “consensus” means. It wrote:

in reality a significant number of GAC members were in consensus not to allow the .WINE and .VIN applications to proceed through evaluation until sufficient additional safeguards were in place. The reality is that the GAC as a whole could not reach consensus, what does not necessarily imply that the strings can proceed through the normal evaluation process without further consideration.

It’s worded awkwardly, but France seems to be saying that agreement among a certain subset of GAC members (ie, the Europeans) somehow constitutes a GAC consensus that the applications should be indefinitely delayed.

It’s disturbing close to arguing for majority rule on the GAC, which as I explained in depth earlier this week is something to be avoided at all costs.

Anyway, that’s the second prong of the RfR attack: whether the NGPC had been misled about the GAC’s views.

The four separate RfRs appeared on the ICANN web site today. The file labeled as being from the European Commission appears to be a copy of the French one; possibly an uploading error.

UPDATE: It was an uploading error. You can find a copy of the European Commission RfR here (pdf).

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