Panelist in .basketball decision uses different interpretation of guidelines to come up with a different conclusion than panelist in .sport.
An International Chamber of Commerce panelist has determined that community objections filed against two applications for .basketball have failed. Comparing this decision to a recent one upholding a community objection to .sport, it appears we may have another case of inconsistent rulings.
The .basketball community objection was filed by Fédération Internationale de Basketball (FIBA), which has applied for .basketball. If filed cases against the two rival applicants, Famous Four and Donuts. The cases were consolidated.
In the .sport case, SportAccord filed the complaint against rival applicant Famous Four and won.
In both cases, the panelists agreed with the objectors on everything up to the part about delegating the string to the applicants having a likelihood of material detriment on the community. That’s where the panelists differed.
First, let’s take a look at what FIBA said would happen if the applicants got .basketball:
* Ambush marketing
* Ticket scalping
* Cybersquatting and domaining
* Selling unofficial tournament and team merchandise, especially around tournaments
* Association between .basketball and gambling
* Loss of control educating about antidoping campaigns
Now, here’s what SportAccord argued would happen for .sport:
* Ambush marketing
* Ticket scalping
* Cybersquatting, typo-squatting and brand-jacking
* Illegal or undesirable gambling
* loss of credibility of community-based governance models and community-based communication policies for anti-doping, anti-drug, anti-racism
* misuse of sport themes for pornography
These look very similar, don’t they? We don’t know exactly what “proof” each party submitted, but I suspect it was fairly similar.
Yet the panelist for .basketball determined FIBA didn’t provide evidence of a likelihood of material detriment. The panelist in the .sport decision determined that SportAccord did.
Actually, that’s not quite what happened. The panelists came to their conclusions using two different interpretations of the standards. Here’s panelist Jennifer Kirby on .basketball:
What is material to my determination is the Objector’s failure to put on evidence proving that the Application creates a likelihood of material detriment to a significant portion of the Basketball Community. Rather, the Objection sets forth a series of speculative allegations with no evidence to support a finding that any material detriment to the Basketball Community would likely come to pass if “.BASKETBALL” were delegated to the Applicant. This is insufficient to meet the Objector’s burden of proof on this issue.
In other words, FIBA threw out a bunch of conjecture about what might happen, but didn’t show a likelihood of material detriment, which is the standard in the guidebook.
Compare that to panelist Dr. Guido Santiago Tawil in .sport:
First, the Appointed Expert finds that the ICANN Guidebook does not call for “actual damage” for an objection to be accepted. It establishes a lower bar, namely a “likelihood of material detriment”, logical consequence of the impossibility of assessing any damage when the Applicant has yet to start operating the gTLD string.
Therefore, the standard that the Appointed Expert should apply to this issue is the “chance” that detriment will occur, which differs from the standard of “actual damage” invariably applied in litigation or arbitration. In other words, the standard of a “likelihood of material detriment” is, in the Appointed Expert’s opinion, equivalent to future “possible” damage.
Did you catch that? Kirby used the guidebook’s language about showing a likelihood of material detriment. Tawil interpreted that to be a “chance” of detriment, or “possible” detriment.
Tawil is correct that you can’t prove actual damages. But he applies a completely different requirement in .sport than Kirby used in .basketball.
Panelist Jennifer Kirby basically agreed with FIBA’s complaint until it came to the issue of whether the applicants getting .basketball would cause a likelihood of material detriment to the basketball community.
Rubens Kuhl says
This can get uglier when the .sports objection is published. So far we only know about the .sport objection.
Andrew Allemann says
Good point.
Constantine (.MUSIC) (@mus) says
Andrew,
You are getting somewhere with this 😉
.BASKETBALL Objector got screwed based on .SPORT precedent. Inconsistency galore. But remember there is no accountability on decisions by ICANN, ICC or the Panelist.
How did you like the ICC Webinar? Enjoy the soundbytes of lack of accountability and ICANN pointing to the AGB that the ICC, ICANN and the panelist are not accountable for the flawed process?
I feel bad for BOTH objectors and objected-to applicants. This has been a terrible experience and process (plus expensive).
Andrew Allemann says
At least you and I agree on something – people are getting screwed – even if we disagree on who’s getting screwed 🙂
Kristina says
In fairness to ICANN and the DRPs, the community (including me) didn’t pay nearly as much attention to Module 3 when the Guidebook was being drafted as we should have. That will definitely change when it comes time for “study”.
Andrew Allemann says
I think it’s clear that the guidelines for most types of objections weren’t as clear as they needed to be.
Constantine (.MUSIC) (@mus) says
Kristina,
With all due respect we have been talking about these issues for a year now but noone bothered to listen. We warned about all the loopholes and pics being accepted (see famous four .charity decision) but we were ignored. The unintended consequence now in light of .charity and other decisions (.eg amazon change of position with .music) we will be now submitting PICs for CPE. Who cares if it is a material change? Everyone is doing it. Public interest!
ICANN changed the registry agreement and passed resolutions not in AGB. Material changes for brand holders coming up too. No study us needed. ICANN has the power to do what is right and they have deviated from AGB since applications were posted.
No excuse anymore. We painted the picture for months but they pressed the ignore button. Time to face any unintended consequences that will occur because of their inaction.
Not buying ICANN’s excuses or the community’s about these results. Perhaps listening to some in the trenches would actually be useful.