Today blah blah ZA Central Registry blah blah .africa blah delegated blah.
ICANN blah blah root blah. Blah blah ZACR blah nic.africa.
Blah blah five years blah blah contention blah lawsuit blah blah DotConnectAfrica blah. Blah blah Bekele blah IRP blah.
ICANN blah blah Governmental Advisory Committee blah blah blah African Union blah blah blah.
Blah blah Geographic Names Panel blah blah controversy blah blah blah blah lawsuit blah blah blah leg to stand on.
— dotAfrica (@africandomain) February 15, 2017
Blah racist blah blah conspiracy blah blah blah… nutty. Blah.
Blah reporting blah damned blah story blah forever blah blah bored blah blah blah blah.
A Los Angeles court has rejected a demand for a preliminary injunction preventing ICANN delegating .africa, meaning the new gTLD can go live soon.
Judge Howard Halm ruled February 3, in documents published last night, that the “covenant not to sue” signed by every new gTLD applicant is enforceable and that Africans are being harmed as long as .africa is stuck in legal limbo.
The ruling comes two and a half years after ZA Central Registry, the successful of the two .africa applicants, signed its Registry Agreement with ICANN.
Rival applicant DotConnectAfrica, rejected because it has no African government support, is suing ICANN for fraud, alleging that it failed to follow its own rules and unfairly favored ZACR from the outset.
Unfortunately, the ruling does not address the merits of these claims. It merely says that DCA is unlikely to win its suit due to the covenant it signed.
Halm based his decision on the precedent in Ruby Glen v ICANN, the Donuts lawsuit that seeks to stop ICANN awarding .web to Verisign. The judge in that case ruled last November that Donuts signed away its right to sue.
An earlier judge in the DCA v ICANN case had ruled — based at least in part on a misunderstanding of the facts — that the covenant was unenforceable, but that decision now seems to have been brushed aside.
Halm was not convinced that DCA would suffer irreparable harm if ZACR got given .africa, writing:
The .Africa gTLD can be re-delegated to DCA in the event DCA prevails in this litigation… Further, it appears that any interim harm to DCA can be remedied by monetary damages
He balanced this against the harm of NOT delegating .africa:
The public interest also weighs in favor of denying the injunction because the delay in the delegation of the .Africa gTLD is depriving the people of Africa of having their own unique gTLD.
So what now?
ICANN said in a statement: “In accordance with the terms of its Registry Agreement with ZACR for .AFRICA, ICANN will now follow its normal processes towards delegation.”
As of this morning, ZACR’s .africa bid is officially still marked as “On Hold” by ICANN, though this is likely to change shortly.
Assuming ZACR has already completed pre-delegation testing, delegation itself could be less than a week away.
If DCA’s record is anything to go by, it seems unlikely that this latest setback will be enough to get it to abandon its cause.
Its usual MO whenever it receives an adverse decision or criticism is to double down and start screaming about conspiracies.
While the injunction was denied, the lawsuit itself has not been thrown out, so there’s still plenty of time for more of that.
You can read Halm’s ruling here (pdf).
DotConnectAfrica is continuing its legal attempt to prevent the .africa gTLD from being delegated to a competitor supported by African governments.
The recalcitrant applicant has filed for another temporary restraining order and preliminary injunction that would prevent ICANN handing .africa to the successful applicant, ZA Central Registry, according to ZACR.
DCA’s last application for an injunction was refused by a California judge in December, but last week it renewed its efforts to stymie the long-delayed geo.
ZACR said on its web site yesterday:
On January 4, 2017, DCA filed an ex parte (emergency) temporary restraining order (“TRO”) asking the Court to prevent ICANN from delegating .Africa to ZACR. The Court denied DCA’s ex parte request for a TRO on the grounds that there was no exigency that required an immediate ruling. The Court further clarified that the prior order denying DCA’s preliminary injunction motion was based upon all arguments submitted by ICANN and DCA (thereby rejecting DCA’s contention in its ex parte papers that the ruling did not include ZACR’s arguments). However, the Court agreed to consider DCA’s new arguments as grounds for a new motion for a preliminary injunction. DCA was given until January 6, 2017 to file its motion. ICANN and ZACR shall file opposition papers by January 18, 2017. DCA will then be given an opportunity to file a reply.
The court is scheduled to hear arguments for and against the injunction January 31, ZACR said.
In the meantime, .africa remains in limbo.
DotConnectAfrica’s attempt to have ICANN legally blocked from delegating the .africa gTLD to rival applicant ZACR has been denied.
The ruling by a Los Angeles court, following a December 22 hearing, means ICANN could put .africa in the root, under ZACR’s control, even before the case comes to trial.
A court document (pdf) states:
The plaintiff is seeking to enjoin defendant Internet Corporation for Assigned Names and Numbers (ICANN) from issuing the .Africa generic top level domain (gTLD) until this case has been resolved…
The plaintiff’s motion for the imposition of a Preliminary Injunction is denied, based on the reasoning expressed in the oral and written arguments of defense counsel.
My understanding is that the latest ruling means ICANN may no longer be subject to that injunction, but ICANN was off for the Christmas holidays last week and unable to comment.
“Sanity prevails and dotAfrica is now one (big) step closer to becoming a reality!” ZACR executive director Neil Dundas wrote on Facebook. He declined to comment further.
Even if ICANN no longer has its hands tied legally, it may decide to wait until the trial is over before delegating .africa anyway.
But its lawyers had argued that there was no need for an injunction, saying that .africa could be re-delegated to DCA should ICANN lose at trial.
DCA case centers on its claims that ICANN treated it unfairly, breaking the terms of the Applicant Guidebook, by awarding .africa to ZACR.
ZACR has support from African governments, as required by the Guidebook, whereas DCA does not.
But DCA argues that a long-since revoked support letter from the African Union should still count, based on the well-known principle of
jurisprudence the playground “no take-backs”.
The parties are due to return to court January 23 to agree upon dates for the trial.
A California judge just handed ICANN another upset in the interminable legal battle waged against it by unsuccessful .africa applicant DotConnectAfrica.
Gary Klausner yesterday admitted he made a mistake when he earlier slapped ICANN with a preliminary injunction preventing .africa being delegated to DCA rival ZA Central Registry, but said his error did not have a huge bearing on that decision.
More remarkably, he’s now suggesting that ICANN may have been wrong to make DCA undergo the same Geographic Names Review as every other new gTLD applicant.
Both DCA and ZACR applied for .africa and had to go through the same evaluation processes, one of which was the Geographic Names Review.
Both had to show that they had support from 60% of the governments in Africa, and no more than one governmental objection.
ZACR had that support — though there’s legitimate dispute over whether its paperwork was all in order — while DCA did not. DCA also had over a dozen objections from African governments.
ZACR passed its geographic review, but DCA’s application was tossed out based on Governmental Advisory Committee advice before the review could be completed.
DCA took ICANN to an Independent Review Process panel, which ruled that ICANN had failed to live up to its bylaws and that DCA’s application should be returned to the evaluation process.
ICANN returned DCA’s application to the process at the point it had left it — before the geographic review was complete.
DCA then failed the review, because it has no support.
But when he granted the injunction against ICANN back in April, Klausner thought that DCA had actually passed the geographic review on the first pass. Not even DCA had claimed that; it was just a brain fart on his behalf.
He’s now admitted the mistake, but says the April ruling was not dependent on that misunderstanding.
The Court finds that the error in its factual finding was not determinative to its ultimate conclusion that there are serious questions going toward Plaintiff’s likelihood of success on the merits.
Now, he says that there may be some merit in DCA’s claim that it should have been allowed to skip the GNR due to the IRP’s recommendation that ICANN “permit DCA Trust’s application to proceed through the remainder of the new gTLD application process.”
Klausner wrote yesterday:
At this stage of litigation, it is reasonable to infer that the IRP Panel found that ICANN’s rejection of Plaintiff’s application at the geographic names evaluation phase was improper, and that the application should proceed to the delegation phase.
The problem with this thinking is that it was not the geographic panel that flunked DCA on the first pass, it was the GAC.
DCA got this document (pdf) from the geographic panel. It just says “Incomplete”.
If DCA succeeds in persuading a jury that it should have skipped the geographic panel, Africa could wind up with a .africa gTLD operator that none of its governments support and in circumvention of ICANN’s rules.
Yesterday’s ruling isn’t a killer blow against ICANN, but it does make me wonder whether Klausner — who is also hearing the much higher-profile Stairway to Heaven case right now — is really paying attention.
Anyway, he’s thrown out the ZACR/ICANN motion to reconsider the injunction, so the case is carrying on as before. Read the ruling here (pdf).