Displaying posts under "Policy & Law"
It’s difficult to predict the outcome of community objections.
As of yesterday the International Chamber of Commerce had published 21 community objection decisions. Objectors have won just four of the cases.
Time for new top level domain applicants to rejoice? Hardly.
Much like string confusion objections, community objection decisions and how panelists arrive at their decisions are proving to be inconsistent.
Community objections are certainly more complicated than string confusion objections. Pleadings and arguments are much more detailed. So you can make the argument that you shouldn’t be able to predict the outcome of a community objection as easily as a string confusion objection.
But some are real head-scratchers, such as the .sport decision. “Sport” is a clearly defined community? (Much less one that will be significantly harmed by the introduction of a .sport TLD?)
Although most panelists have sided with the applicants, they have also tended to use a very wide definition of what a community is in their decisions. Much like with string confusion objections, panelists are writing that the guidebook provides them little guidance on what a community is, and thus they need to look elsewhere for the meaning.
That “elsewhere” is often the Governmental Advisory Committee. Panelists seem to treat GAC deliberations and recommendations as gospel, which sort of makes sense if you come from the panelist’s legal world. Without background knowledge of ICANN, they aren’t aware that it’s just one committee (albeit with a lot of influence), and that it only provides recommendations – not determinations.
In some cases, perhaps panelists are throwing the objectors a bone by finding a clearly delineated community after they’ve already decided the case will fail on other grounds. It may be easier to accept there’s a community if the end result will be the same.
Much like with string confusion objections, the uncertainty is bad for both objectors and applicants.
Tourism group guilty of trying to hijack domain name from Digimedia.
Gold Coast Tourism Corporation Ltd. has been found guilty of reverse domain name hijacking in a UDRP over the domain name GoldCoast.com.
The case was filed against Digimedia, which was represented by John Berryhill.
The complainant, a non-profit that promotes the Gold Cost in Australia, uses the domain name at visitgoldcoast.com.
Gold Coast Tourism alleged that Digimedia asked $1 million for the domain name, which it claimed is a “totally excessive and unreasonable payment” and that this makes the registration in bad faith.
The three person panel ruled that Gold Coast Tourism proved none of the three requirements necessary to win a UDRP. It also found that the group had attempted reverse domain name hijacking, and called the case “fatally weak”.
The Complainant engaged in exchanges with the Respondent to purchase the disputed domain name. The Complainant’s own evidence indicates that the Complainant was willing to purchase the disputed domain name for USD 10,000. In those exchanges, the Complainant made no suggestion that it considered the Respondent’s registration to have been made in bad faith, or that the Respondent was otherwise infringing the Complainant’s rights.
The panelists included James Barker, Philip Argy, and Andrew Christie. The latter panelist has historically been favorable to complainants and has argued that a respondent merely has to use a domain in bad faith – not register it in bad faith – for the complainant to prevail.
Is Merck a community? It’s a murky argument.
An International Chamber of Commerce panelist has issued his rulings in three cases involving the Merck brand. In doing so, he has ruled that companies don’t qualify as communities, at least for new TLD community objections.
The three cases were filed by Merck KGaA against Merck Registry Holdings and MSD Registry Holdings and covered two applications for .merck and one for .merckmsd.
If you’re confused, let me clear things up a bit.
Merck & Co, which is essentially the latter two entities above, was formerly a U.S. subsidiary of Merck KGaA that was confiscated by the US government during World War I and then established as an independent company. Both companies have territorial rights to the Merck name.
Apparently their brand sharing agreements over the years haven’t been working so well in practice. The two companies are tangled up in court in Germany over brand usage, and even the Merck.com domain name.
When both companies applied for .merck, trouble was brewing. Both filed legal rights objections against each other and are also in court over the new TLD matter.
The entities each filed community objections against each other, but apparently Merck & Co filed its complaints late so they weren’t accepted. Which left Merck KGaA’s three community objections to be decided.
You may be scratching your head as to how a pharma company could claim to be a community.
Well, Merck KGaA claimed that its group of companies, employees, etc. constituted a community.
Merck & Co argued it didn’t. But that’s where things get a bit silly.
You see, one of Merck & Co’s applications that was subject to the proceedings was filed as a community application. Merck & Co had also filed community objections against Merck KGaA (the ones that weren’t accepted). So how is it now claiming that there isn’t a Merck community?
Merck & Co tried to argue that it was a community, but Merck KGaA wasn’t. It argued that it “is composed of a richly diverse group of entities that includes not only [Respondent]’s core businesses, but wide ranging philanthropic endeavours, charitable foundations and leading medical and scientific publications.”
With this in mind, panelist Bernardo M. Cremades determined that both Mercks believe Merck is a community. But the parties don’t get to decide if it’s a community or not:
However, even if the Parties were to agree on an interpretation of the Guidebook, the Expert is not bound by such interpretation. On the contrary, the Expert is the gatekeeper of the Guidebook and must serve as a safety net for the correct interpretation thereof.
Cremades determined it’s not a community in the eyes of the guidebook. If it were, that would open new TLDs up to a lot of gaming:
As the Respondent correctly suggests, the Expert must avoid creating a dangerous precedent that may give rise to abusive community objections in the future. Allowing groups of companies to qualify as valid communities under the Guidebook will create every incentive for potential objectors to incorporate subsidiaries in order to build a synthetic community.
Board considers if there’s any sort of appeal mechanism to new TLD objections.
The results of new TLD string confusion objections handled by International Dispute Resolution Centre were a mess. They were completely unpredictable and results were mostly dependent on who the panelist was, not the merits of the case.
As a result, both objectors and applicants have filed reconsideration requests with ICANN’s board. The board governance committee has summarily rejected them.
But that’s likely not the end of the matter. Here’s a discussion at the November 5 board new gTLD committee regarding the matter:
The Committee engaged in a discussion regarding concerns highlighted by the community with the some seemingly inconsistent Expert Determinations from the string similarity objection process, and limitations of the Reconsideration Request process to address the merits of a decision.
Amy Stathos noted that the Board Governance Committee requested staff to prepare an analysis of options that could be utilized to address seeming inconsistences in some of the Expert Determinations from the dispute resolution panel.
Olga Madruga-Forti recommended that Committee address the concerns in steps, focusing initially on the appropriate standard of review for the Committee to consider the Expert Determinations. Olga noted that most appellate tribunals apply very narrow standards of review that are focused primarily on whether the correct process was followed, but highlighted that considering whether process had been followed also requires deciding whether a lower tribunal could have reasonably reached its published outcome following the stated process. Olga inquired whether existing standards could be interpreted to include the concept of reasonableness.
Gonzalo Navarro suggested that the requested analysis consider whether creating a different level of review by the Committee or the BGC might create unfairness to the applicants and the process.
Chris Disspain recommended that the analysis include a discussion of the steps that are available to someone who has lost an objection, and George Sadowsky commented that there should be a method to address the exceptional situations where an Expert Determination deviates far from the norm. George noted that if there is any review process created, it must be carefully circumscribed and limited.
Mike Silber suggested that an administrative quality control step in the review process may be needed before there is a review of an Expert Determination. Mike noted that the Committee has a responsibility to respond to the issue, and discussed the extent to which the Committee should or should not be involved.
Chris and Gonzalo noted that when discussing the issue, the Committee should distinguish between the issue of consistency among the Expert Determinations as distinct from considering Expert Determinations that appear not to have a rational basis.
The Committee discussed its next steps to address the concerns raised. The General Counsel and Secretary suggested that the issue regarding the fairness of Expert Determinations of the string similarity objection dispute resolution service provider be on a different track than recommended changes to the Reconsideration Request process. The General Counsel and Secretary noted that any changes to an accountability mechanism will require expert advice, public comment and community feedback.
The Committee agreed to discuss the matters further at its meeting Buenos Aires. The Chair called the meeting to a close.
Given the wide range of results coming in from community objections now, I suspect this discussion will include these objections, too.
The board’s discussion makes me think the .car wreck could take a while to clear…
The independent objector has killed Donuts’ application for .medical.
Prof. Alain Pellet, the independent objector for the new top level domain name program, has won (pdf) a community objection against Donuts’ application for .medical.
The case got off to a bizarre start, with Donuts calling into question Pellet’s impartiality and independence. Donuts pointed out that Pellet has a bias to the medical community and that Donuts’ TLDs make up a large part of his objections. Pellet also objected to Donuts’ applications for .healthcare, .hospital, and .health.
Donuts also drew a connection between Pellet and a healthcare professional from a LinkedIn connection. The panelist determined that the two weren’t actually connected on LinkedIn.
These accusations, which panelist Alan Limbury didn’t buy, seemed to get Donuts off on the wrong foot in this case.
Donuts lost the case because Limbury essentially determined that the .medical domain name would lead to abuse:
“It is likely that second level registrants in the applied-for gTLD will include innumerable persons offering medical advice without being qualified to do so and offering real or fake prescription medication without a valid prescription, thereby putting the health and safety of the general public at risk.”
Limbury ruled that, because Donuts’ remedies for abusive behavior are all after-the-fact, the damage from this behavior can’t be avoided.
Donuts pointed out that there are already 100,000 second level domain names that include the word “medical,” and there are no restrictions on who can register existing second level domains including the term.
Limbury was unmoved by this argument.
By allowing access to second level registrants lacking the qualifications required of medical practitioners and other members of the medical community (i.e. legitimate suppliers of medicines and medical services), the Applicant’s operation of the applied-for gTLD string is likely to interfere with the core activities of the medical community by allowing the unqualified to misrepresent themselves as qualified; by creating doubt as to whether qualified members of the medical community are in fact legitimate providers of medicines and medical services; and by creating confusion as to whether medicines obtained online are unapproved, substandard and counterfeit.
That pretty much describes a state of the internet today; one in which registries are not asked to police what are primarily local laws and norms.
I imagine this is a tough one for Donuts to swallow. It will be interesting to see if different panelists hear the other health related objections Pellet brought against Donuts and if they come to the same determination.