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Famous Four vows to fight .sport objection loss

Kevin Murphy, October 31, 2013, 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 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.

Three gTLD Community Objections rejected

Kevin Murphy, October 30, 2013, Domain Registries

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.

Ralph Lauren can’t have .polo, panel rules

Kevin Murphy, October 17, 2013, Domain Policy

Ralph Lauren’s application for the dot-brand .polo is likely at an end, after the International Chamber of Commerce ruled that it would infringe the rights of polo players.

The Community Objection to the gTLD was filed by the US Polo Association, the governing body of the sport in the US, and supported by the Federation of International Polo, along with seven national and 10 regional US-based polo associations.

The FIP letter was crucial in ICC panelist Burkhard Hess’ decision to find against Ralph Lauren, persuading him that there was “substantial opposition” from a “clearly delineated” polo-playing community.

The word “polo” was often used in straw man arguments when the new gTLD program and its objection mechanisms were being designed. Who gets .polo? Ralph Lauren? Volkswagen? Nestle? The sport?

Well, now we know: according to the ICC, the sport will probably trump any dot-brand.

The precedent might be bad news for Donuts and Famous Four Media, which are facing Community Objections from the international governing bodies of rugby and basketball on .rugby and .basketball.

However, none of those applications are for dot-brand spaces.

Under the Community Objection rules, the objector has to show that the gTLD would harm its interests is delegated.

In the case of .polo, the panelist found detriment largely due to the fact that Ralph Lauren’s plan was for a single-registrant space from which the sports associations would be excluded.

With open, unrestricted .basketball and .rugby applications, it’s likely to be much harder for the objectors to prove that the gTLDs would damage the sport.

New gTLDs: 23 community objections withdrawn

Kevin Murphy, August 21, 2013, Domain Registries

Almost a quarter of Community Objections against new gTLDs have been terminated without a decision, according to International Chamber of Commerce documentation.

The withdrawals leave the way open for the applied-for gTLDs .insure, .realty, .realestate, .cruises, .careers and .bio to proceed unencumbered by any objections at all.

In total 23 Community Objections, of the original 104 reported by ICANN, have been dropped. Two of the original 23 Limited Public Interest Objections have also been terminated, according to the ICC.

The terminated Community Objections seem to fall into a few categories.

Objections against applications for .autoinsurance, .carinsurance, .health, .mail and .patagonia appear to have been stopped because the applications themselves were withdrawn.

The Independent Objector, Alain Pellet, has withdrawn one Limited Public Interest — .health — and three Community objections — .patagonia, .indians, .hospital.

These seem to have been yanked due to either application withdrawals, matching objections filed by third parties, or by Governmental Advisory Committee advice.

Applications facing one fewer objection — but not zero objections — include those for .insurance, .broker, .hoteis, .hoteles, .health, and .kid.

GAC advice remains a concern for many of the affected applicants, even those that no longer face the uncertainty and expense of the objection process.

Donuts seems to have fared best from the terminations. Its .careers and .cruise bids seem to be the only ones to have emerged uncontested and with no outstanding objections or GAC advice.

The terminations were revealed in an updated list of objections published by the ICC on Monday.

The updated data is now indexed and searchable on the all-new, super-duper DI PRO Application Tracker.

“Extortion” claims over new gTLD objection fees

Kevin Murphy, July 22, 2013, Domain Policy

The International Chamber of Commerce came in for quite a bit of criticism at ICANN 47 last week over claims that it is asking for deposits in excess of a million dollars to handle new gTLD objections.

Critics are worried that these high fees to arbitrate Community Objections will create a “chilling effect” that will dissuade communities affected by new gTLDs from objecting.

During a session early during the Durban meeting, Neustar VP Jeff Neuman said that the company had been “shocked” to receive a bill from the ICC for $190,000 for a single objection.

“Each one of the bidders had to put up $190,000,” he said. “It’s nothing better than extortion.”

Responding, ICANN new gTLD program manager Christine Willett said that ICANN has heard concerns from other applicants affected and has asked the ICC for a detailed rationale for its fees, which it will publish.

The ICC, she said, is “utilizing preeminent jurists to arbitrate and manage these cases” and that the estimated €450 per hour wage is “probably lower than what some of these jurists get in public fees”.

As we’ve noted previously, at €450 per hour it works out that each judge in the three-person panel would have to work on nothing but the objection, full-time, for over two weeks to justify the fee.

Later last week, during the Public Forum on Thursday, Mark Partridge of Partridge IP Law — who is WIPO panelist dealing with new gTLD Legal Rights Objections — had similar criticisms.

He said he was aware of a consolidated proceeding — where multiple objections have been bundled into the same case — where the ICC was asking for a total of €1.13 million.

A bit of back-of-the-envelope math suggests that the panelists in that case would have to work on the case full-time for a month at €450 an hour.

Partridge, noting that WIPO charges substantially less for LRO objections, said:

I’m also aware of not-for-profit associations that have found the amount of the required deposit to be prohibitive for that not-for-profit association to advance.

I’m still very concerned about the chilling effect that these high fees have going forward.

In response, Willett said that the Community Objection is substantially more complex than the LRO, and reiterated that

The prevailing party in a new gTLD gets its money back from the ICC. This may reduce the chilling effect, but only if a community is willing to put its money — if it even has the funds — on the line.

As we haven’t yet had any Community Objection decisions handed down yet, it’s pretty difficult to judge going into a case what the likely outcome would be. This may change in future rounds.

The ICC is also handled Limited Public Interest Objections, many of which have been filed by the ICANN-selected Independent Objector. If the objector loses his cases, the cost comes out of his budget, which was paid for by new gTLD applicants.