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It’s open season on ICANN as judge rules new gTLD applicants CAN sue

Kevin Murphy, April 13, 2016, 16:49:04 (UTC), Domain Policy

DotConnectAfrica has won a California court ruling that will allow it to continue suing ICANN over its twice-rejected .africa gTLD application.

District judge Gary Klausner ruled yesterday that the litigation waiver all applicants had to sign when they applied may be unenforceable.

“The Court finds substantial questions as to the Release, weighing toward its unenforceability,” he wrote (pdf).

California law says that such waivers cannot stop people being sued for fraud, and fraud is what DCA is alleging, he explained.

DCA alleges that ICANN intended to deny DCA’s application after the IRP proceeding under any pretext and without a legitimate reason.

The evidence suggests that ICANN intended to deny DCA’s application based on pretext. Defendants have not introduced any controverting facts. As such, the Court finds serious questions regarding the enforceability of the Release due to California Civil Code § 1668.

The judge granted DCA’s request for a preliminary injunction that will prevent it from delegating .africa to successful applicant ZACR.

ZACR has the backing of the African Union Commission and, per ICANN rules, over 60% of the governments in Africa.

DCA applied for .africa with no government support, but with an AUC letter of support than had already been retracted. The company claims that the AUC was not allowed to withdraw its endorsement under ICANN rules.

But it doesn’t seem to matter what the governments of Africa want. Klausner wrote:

On balance, the Court finds it more prejudicial to the African community, and the international community in general, if the delegation of .Africa is made prior to a determination on the fairness of the process by which it was delegated.

Sorry Africa, no gTLD for you yet!

The case continues…

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Comments (3)

  1. It feels as if ZACR has lined the pockets of the ICANN committee, because the profit-making overseer of the internet domain system (ICANN), apparently is in favor of ZACR to the extent they are now publicly referring to them “trading as Registry.Africa” as if the TLD has been delegated to them.

    From ICANN’s .Africa Update:

    “Two applicants, DotConnectAfrica Trust (DCA) and ZA Central Registry trading as Registry.Africa (ZACR), applied to be become the operator for the .AFRICA generic top-level domain (gTLD) in furtherance of ICANN’s New gTLD Program.”

    Something shady about ZACR and their .africa application.

  2. Rubens Kuhl says:

    There were only two ways to win a .africa delegation: either direct support from a significant number of countries, or support from a proxy organisation like AUC. None of the registries went for country-by-country support, so AUC got to pick who would win, not ICANN.

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