ICANN has overturned a Community Objection decision, allowing a .med new gTLD applicant back into the game, after a Request for Reconsideration from the applicant.
It’s the first time ICANN has overruled an objection panel during the new gTLD program and the first time in over a decade any RfR of substance has been accepted by the ICANN board of directors.
Medistry lost a CO filed by the program’s Independent Objector, Alain Pellet, back in January.
Under program rules, that should have killed off its application for .med completely.
But the company filed an RfR — ICANN’s first and cheapest appeals mechanism — claiming that Pellet acted outside his jurisdiction by filing the objection when there was not at least one informal objection from a community member on the public record.
Its case, as outlined in its RfR, was quite compelling, as I outlined in a piece in March.
Medistry argued that the International Chamber of Commerce’s panelist, Fabian von Schlabrendorff, had cited two non-existent informal community objections in his decision.
One of them literally did not exist — and von Schlabrendorff went so far as to infer its existence from its absence — while the other was “advisory” in nature and was not intended as an objection.
In March, ICANN’s Board Governance Committee accepted Medistry’s RfR on a preliminary basis, to give it more time to consider whether the IO had acted outside of the new gTLD program’s rules.
Yesterday, the BGC came to its final decision (pdf):
The BGC concludes that, based on information submitted with this Request, there is substantial and relevant evidence indicating that the Objection was inconsistent with ICANN procedures, despite the diligence and best efforts of the IO and staff. Specifically, the Requester [Medistry] has provided the BGC with uncontroverted information demonstrating that the public comments on which the Objection was based were not, in fact, in opposition to the Requester’s application. Accordingly, the BGC concludes that ICANN not consider the Expert Determination at issue and that the Requester’s Application for .MED is therefore permitted to proceed to the next stage of process in the New gTLD Program.
In other words: 1) Pellet inadvertently acted outside of his remit 2) the ICC’s ruling on the objection is simply cast aside and 3) Medistry’s application is back in the .med contention set.
The main reason this RfR succeeded while all others to date have failed is that Medistry managed to provide new information, in the form of clarifying letters from the two non-existent informal objectors, that was not originally available.
The large majority of previous RfR’s have failed because the requester has failed to bring any new evidence to the table.
The public comments from [National Association of Boards of Pharmacies] and [American Hospital Association] that were the basis for the Objection were vague and open to a number of interpretations. Given that there is substantial and uncontroverted evidence from the authors of those public comments, indicating what NABP and AHA intended, the BGC cannot ignore this information in assessing the Request or reaching its determination.
I think ICANN is going easy on the ICC and von Schlabrendorff (how can something that does not exist be “open to a number of interpretations”?) but it seems that the RfR process has in this case nevertheless been a bit of a success, overturning an extremely dodgy decision.
The .med contention set also contains HEXAP and Google.
Medistry has become the first new gTLD applicant to win an appeal to ICANN over an objection decision that went against it.
The .med hopeful has also become the first entity in years to successfully use the much-derided Reconsideration Request process to get ICANN’s board of directors to revisit a decision.
The company’s application received a Community Objection filed by the new gTLD program’s Independent Objector, Alain Pellet, along with a bunch of other healthcare-related gTLD bids.
Medistry lost, meaning its application should be dead in the water.
But it appealed using the Reconsideration process, arguing that Pellet failed to follow the rules laid out for the IO in the program’s Applicant Guidebook.
These rules state that the IO can only object on Community grounds if there is at least one informal objection from a community member on the public record, for example filed as ICANN comments.
Medistry claims that the IO did not pass that test in its case and the ICANN board’s Board Governance Committee, which handles Reconsideration Requests, reckons that claim merits further review.
Judging by the International Chamber of Commerce decision (pdf), comments filed by the National Association of Boards of Pharmacy and the American Hospital Association were critical in showing “substantial opposition” from the healthcare community.
Without such opposition, the IO would have had no right to object.
Medistry argued during the objection case that the NABP comment, which talks about the need for patient safety, was purely “advisory” in nature and did not represent an objection to its .med application.
The ICC panelist, Fabian von Schlabrendorff, disagreed, writing:
The Expert Panel accepts that the comments made by the National Association of Boards of Pharmacy (NABP), on which the Independent Objector relies for the purpose of demonstrating substantial opposition, represent an expression of opposition, i.e. resistance or dissent, to the Application, going beyond merely having an advisory character as the Applicant suggests.
The problem with that interpretation is that it turns out to be dead wrong. Von Schlabrendorff read too much into the original NABP comment.
Medistry submitted as part of its Reconsideration Request a letter from NABP saying:
We wish to clarify that NABP’s comment was intended to be advisory in nature, stressing that health-related gTLDs should account for patient safety and implement protections against fraud and abuse. In submitting this comment, NABP did not oppose Medistry’s application to be the Registry Operator for the .MED gTLD, nor take any position as to whether Medistry’s .MED application contained appropriate safeguards.
The second public “objection” used by the IO to allege substantial opposition, an argument that von Schlabrendorff accepted, came from the America Hospital Association.
Except the AHA did not file a comment on the Medistry application (well, it did, but it was withdrawn two days later in September 2012, long before the objection process began).
The AHA did object to the other three applications for .med, filed by Google, Hexap and DocCheck, but not to Medistry’s application.
Remarkably, von Schlabrendorff chose to interpret the absence of an AHA objection as the existence of an AHA objection, speculating that it did not object to Medistry’s application due to nothing more than an oversight, and applied its objections against Medistry regardless.
even if the Applicant had established in understandable and verifiable detail that the AHA on purpose decided not to oppose the Application, such decision of the AHA would and could not change the fact that the NABP expressed opposition to the Application on grounds of public health concerns, and that the AHA raised essentially identical concerns with regard to all other .med applications.
To me, this looks like Medistry was given the Kafkaesque challenge of proving that the AHA had not objected to its application, even though there was no such objection on record.
Using a von Schlabrendorff level of speculation, I’m guessing that the AHA did file an objecting comment originally, but withdrew it a couple of days later when informed that Medistry’s parent company is an AHA member.
Given that the NABP and AHA “objections” both turned out to be non-existent, the ICANN BGC has naturally enough decided that the Medistry Reconsideration Request merits further consideration.
The BCG wrote (pdf):
the BGC finds that Request 14-1 should be granted to provide sufficient time to further evaluate whether any actions were taken in contravention of established policy or procedure, such as whether the threshold requirement set forth in Section 3.2.5 of the Guidebook was satisfied. The BGC will ensure that ICANN further evaluates this issue and provides a report to the BGC for consideration
It is important to note that the BGC’s acceptance of this Reconsideration Request should in no way reflect poorly on the IO or be seen as a finding that the IO failed to properly discharge his duties. Rather, this determination is a recognition that the Requester has submitted substantial information indicating that the IO’s assessment of what could be described as vague comments (particularly those of NABP), may not have been consistent with what the commenters intended.
What this seems to mean is that the Medistry application for .med is undeaded and that von Schlabrendorff’s increasingly dodgy-looking decision is going to be looked at.
It also means that Reconsideration Requests are not entirely useless.
No Reconsideration Request of any consequence has been accepted by the BCG in the 15 years the procedure has been active.
Generally, they’re thrown out because the requester fails to provide any new information that wasn’t available at the time the offending decision is made, which is a prerequisite for success.
In this case, Medistry’s production of the NABP letter of clarification seems to have been critical.
Twelve new gTLD applicants, representing many dozens of applications, have called on ICANN to create an appeals process for when Community Objections have debatable outcomes.
Writing to ICANN and the International Chamber of Commerce this week, the applicants focus on the recent decision in the .sport case, which they said proves that ICC panelists don’t fully understand the Community Objection policy as laid out in ICANN’s Applicant Guidebook.
The signatories — which include Radix, United TLD, Donuts, Famous Four, TLDH and others — say that the ICC panelist simply assumed SportAccord represented the “sport” community and failed to pinpoint any “likelihood of material detriment” that would be caused by Famous Four’s .sport going ahead.
It seems to me that the latter arguments are much more well-founded.
While the letter tries to pick holes in the panelist’s finding that SportAccord represents enough of the “sport” community to be able to win the objection, the arguments are pretty tenuous.
The applicants use an definition of “community” found elsewhere in the Guidebook, for example, to attempt to show that the panelist failed to follow the guidelines for establishing a community in a Community Objection.
The panelist’s actual ruling uses the definition of “community” from the relevant part of the Guidebook and seems to follow it fairly closely. The applicants make a poor job of questioning his logic.
However, on “detriment”, the letter seems to be on much firmer ground.
It argues that the panelist deliberately lowered the bar from “likelihood of material detriment” to “possibility of material detriment” in order to hand SportAccord a victory.
The letter states:
If the Expert’s current logic is followed, every application, including the Objector’s own application, creates “possible” damage. In this case, an allegation of material detriment against any application would be upheld because there is future “possible” damage.
It also makes reference to the fact that the panelist appears to in many cases have been weighing the Famous Four application against SportAccord’s, which was not his job.
It reads in part: “The Expert did not identify a single objectionable or lacking aspect in the application that creates a likelihood of material detriment.”
The applicants call on ICANN to immediately create an appeals mechanism for Community Objections, and to ensure that ICC panelists are given training before making any more decisions.
Here’s the full list of signatories: Radix, United TLD, DotClub Domains, Top Level Design, Donuts, Top Level Domain Holdings, Priver Nivel, Fegistry, Employ Media, Famous Four Media, Merchant Law Group, DotStrategy.
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 newdomains.org 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.
International Chamber of Commerce panelists have recently rejected three Community Objections against new gTLD applications.
The dismissals include objections to the controversial Turkey-based bids for .islam and .halal, filed by Asia Green IT System, which had raised the ire of the United Arab Emirates’ telecommunications regulator.
The UAE’s Telecommunications Regulatory Authority — also the operator of its ccTLDs — said it was representing the wider Islamic community under orders from the Organization of Islamic Cooperation.
But ICC panelist Bernardo Cremades ruled, based on a close reading of the OIC’s letter to the TRA and other member states, that the OIC had not formally backed the objection.
While there were over 100 public comments objecting to .islam and over 70 to .halal, because the TRA merely referred to them rather than submitting copies as evidence, the panelist chose to ignore them completely.
He also noted that only the UAE has chosen to file a formal objection.
So Cremades ruled that there was no “substantial opposition” to the applications, which is one of the things objectors need to prove in order to win an objection.
The TRA also failed to persuade the panelist that there was “a likelihood of any material detriment” to the Muslim community if Asia Green’s gTLDs were to be delegated, writing:
The Objector has certainly not provided any evidence that the Respondent is not acting or does not intend to act in accordance with the interests of the Muslim community.
So the TRA’s objections were dismissed and the applicant can proceed to the next phase of the new gTLD program.
Also dismissed recently was Bundesverband der Deutschen Tourismuswirtschaft’s objection to Donuts’ application for .reisen (“travel” in German).
BTW, a German travel industry association, is associated with a competing bid for .reise. Weirdly, it did not file a String Confusion Objection against Donuts’ .reisen.
It had argued among other things that German speakers would expect .reisen to conform to German and European consumer protection laws, while Donuts is planning an open and unrestricted gTLD.
The ICC panelist didn’t buy that argument, noting that a hotel in Argentina could market itself as German-speaking without having to abide by, say, European data protection law.
He also ruled that BTW showed substantial opposition from the commercial sector of German-language travel agents, but not from other sections of the community such as individual travelers.
Finally, he ruled that Donuts had promised to put enough protection mechanisms in place to mean there was unlikely to be a detriment to the .reisen community.
The objection was dismissed.