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First three Community Objections decided: DotGay and Google win but Donuts loses

Kevin Murphy, September 10, 2013, Domain Policy

The International Chamber of Commerce has delivered the first three Community Objection decisions in the new gTLD program, killing off one application and saving two others.
These are the results:
.gay
The objection filed by Metroplex Republicans of Dallas, a gay political organization, against DotGay LLC has failed.
The panelist, Bernhard Schlink, decided that Metrolplex lacked standing to file the objection, stating:

while the conservative segment, with which Metroplex claims association, is a segment of the clearly delineated gay community, it is not a clearly delineated community in and of itself. That some LGBTQ people hold conservative political views and vote for conservative candidates may bring them into a statistical category, but does not make them connect, gather, interact, or do anything else together that would constitute a community, or, that would make them publicly visible as one.

It was the only objection against this .gay application, meaning it can now proceed to later stages of the new gTLD process.
.fly
The objection was filed by FairSearch.org, a coalition of companies that campaigns against Google’s dominance of online markets, against Google’s .fly application.
The application was originally for a “closed generic” registry, but Google has since stated that it has changed its mind and run .fly with an open registration policy.
FairSearch lost the objection, despite ICC panelist George Bermann giving it the benefit of the doubt multiple times during his discussion on its standing to object.
Instead, Google prevailed due to FairSearch’s failure to demonstrate enough opposition to its application, with Bermann writing:

A showing of substantial opposition to an application is critical to a successful Objection. Such a showing is absent here.

He also decided that Google presented a better case when it came to arguing whether or not its .fly would be damaging to the community in question.
.architect
Finally, Donuts has lost its application for .architect, due to an objection by the International Union of Architects, which supports Starting Dot’s competing application for .archi.
Donuts had argued that UIA did not have standing to object because an “architect” does not always mean the kind of architect that designs buildings, which is the community the UIA represents. It could mean a software architect or landscape architects, for example.
But panelist Andreas Reiner found that even if the UIA represents a subset of the overall “architect” community, that subset was still substantial enough, still a community, and still represented by the string “architect”, so that it did have the standing to use the Community Objection.
It also did not matter that the UIA does not represent all the “structural architects” in the world, the panelist found. It represents enough of them that its opposition to .architect passes the “substantial” test.
He eventually took the word “architect” in its most common use — people who design buildings — in determining whether the UIA was closely associated with the community in question.
On the question of whether architects would be harmed by Donuts’ plan for .architect, the panelist noted that architects are always licensed for public safety reasons.
Here are some extracts from his decision, which seem important:

Beyond concerns of public safety, habitat for human beings is of essential importance in society, at the human-social level, at the economic level and at the environmental level
…
it would be compatible with the above references public interests linked to the work of architects and with the related consumer protection concerns, to allow the domain name “.architect” to be used by anyone other than “architects” who, by definition, need to be licensed
…
The use of the top-level domain “.architect” by non-licenced architects is in itself an abuse. This top-level domain refers to a regulated professional service. Therefore all safeguards must be adopted to prevent its use by a non-licensed person.
…
The top-level domain “.architect” raises the legitimate expectation that the related website is the webiste of a licensed architect (or a group of licenced architects). Correct information is essential to consumers visiting websites.

Basically, Reiner trashed Donuts long-standing argument in favor of blanket open registration policies.
He noted specifically that whether to allow a gTLD to proceed might be considered a free speech question, but said that free speech often has its limits, such as in cases of consumer protection.
Worryingly, one of the pieces of evidence that the panelist considered was the Governmental Advisory Committee’s Beijing communique, which contains the GAC’s formal advice against over 500 applications.