New top level domain mega-applicant Donuts is no longer in the running for the .insurance top level domain name as a result of a community objection decision. But it has survived an objection against its .insure application, for which it is not in a contention set.
Panelist Mr. Juan Fernández-Armesto ruled in Donuts favor on one of the .insurance objections as well as the .insure one, but against Donuts on another community objection against .insurance.
In the cases in which Donuts prevailed, Fernández-Armesto determined that the objector, American Insurance Association, represented just the community of U.S. Property & Casualty Insurance companies. He determined that the string .insurance is targeted to the global insurance market, and that when people hear the term “insurance” they don’t think of just the subset of the U.S. Property & Casualty market.
The other case against .insurance was filed by The Financial Services Roundtable (FSR), which has filed a community application for .insurance. It said it represented the global insurance community, not just the U.S. Property & Casualty community. Thus, it did not get ensnared by Fernández-Armesto’s logic on that point.
The FSR decision has a somewhat bizarre circular logic around Governmental Advisory Committee (GAC) advice. Donuts points out that it’s just advice that can be accepted by ICANN’s board. Donuts notes that if ICANN’s board accepts the GAC’s advice, then its advice will be incorporated into the final registry agreement and Donuts will follow it.
Fernández-Armesto determines that he must weigh the GAC’s advice in his objection, even though it’s just one constituency in the ICANN community. He states that GAC advice “is an objective evaluation stated by a
committee comprised of representatives from the national governments, and must be valued accordingly.” ICC panelists have tended to treat the GAC is the rule of law given their prejudice to governments.
From the above discussion it follows that my decision must weigh GAC’s resolutions (a) and consider any alleged lack of preventing measures (b) as well as alleged increased registration and legal costs for the community (c).
This is where a somewhat peculiar argument is invoked by Fernández-Armesto:
…the GAC may express its concerns on any application made and the ICANN Board, after a dialogue with the GAC, may decide to agree or not with the concerns and/or the measures suggested by the GAC. The decision not to follow the GAC Advice may be premised on any number of reasons, which may be different from those to be reviewed in a particular objection. Indeed, hypothetically, one of the factors that may influence the decision not to follow the GAC Advice may be the very fact that the objection procedure will provide a better venue to analyze the concerns raised. In my opinion, the refusal by the ICANN Board to implement a GAC suggestion does not preclude the filing of an objection (whether community or otherwise) to the relevant application.
Fernández-Armesto admits that GAC advice may or may not be accepted by the board, and that the objection procedure is separate. But he bases much of his decision on the very advice provided by the GAC, again placing heavy weight on what governments think about the string in determining the merits of the objection.
After the panelist had submitted his draft to the International Chamber of Commerce, Donuts sent a message saying that ICANN was leaning toward accepting the GAC’s advice and adding requirements to the .insurance string. The panelist responded that the safeguards ICANN planned to force on registries were not enough to change his mind on the harm to the insurance community.