Panelist finds Independent Objector Alain Pellet has a conflict of interest and sides with Amazon.com in domain name dispute.
Amazon.com has successfully defended community objections brought against its applications for .amazon and the Chinese and Japanese equivalent top level domain names. At the same time, it has also successfully questioned the Independent Objector’s conflict of interest in filing the cases in the first place.
The internet retailing giant argued that Independent Objector (IO) Alain Pellet has special links to the governments of Peru, Brazil, Bolivia, and Argentina, who could benefit by this case being filed. (I cannot find Amazon.com’s letter to ICANN regarding this matter, but it’s surely similar to this one filed on behalf of Patagonia.)
Pellet countered that finding that he had a conflict of interest in this case would preclude anybody with “a normal average social life” from serving as the IO.
The expert disagreed. Pellet has been appointed to represent the governments in disputes, which is certainly more of a conflict than having an average social life.
The expert in this case, Professor Luca G. Radicati di Brozolo, upheld Amazon’s objection to Pellet’s independence:
The Expert is of the view that, objectively considered, the links between the IO and two major representatives of the Amazon Community lead to justifiable doubts as to his independence in the eyes of the Applicant and of the broader public. Given the importance of ensuring the perception of neutrality, independence and impartiality of the office of the IO and of the entire gTLD dispute resolution process, the Expert finds that the Applicant’s challenge to the independence of the IO must therefore be upheld.
However, the guidebook does not address the issue of finding a conflict of interest with the IO when it comes to a community objection. Although the panelist was conflicted, it ends up being a moot point because the case failed on other elements.
The panelist determined that the community objection failed to show substantial opposition by the “Amazon Community” and also failed to show that Amazon.com getting the strings would cause material detriment to the community.
Radicati di Brozolo’s rationale was similar to what I’ve previously argued: the Amazon community doesn’t seem to have been affected by Amazon’s use of Amazon.com. Nor did it or anyone else apply for run .amazon.
Some may view this entire objection decision as a moot exercise. The Governmental Advisory Committee has advised ICANN to disallow the .amazon application. Yet Amazon.com is challenging that decision, and it will surely use this case as ammo to convince ICANN’s board not to accept the GAC’s advice.
The full community objection decision is available here (pdf).
Here we go. I’ve said it before but I’ll go on record here again. I think the board is going to ignore GAC advice on this one. .Amazon will be a tld owned by the internet retailer giant.
It’s a distinct possibility.
It’s a famous brand and not just another tm.
I’m very interested in seeing Amazon get .amazon and how it will use it. If it builds its brand on .amazon instead of .com, then the days of .com being king will be gone.
It’s not over till the Fat Lady sings…
You do not think it is a double-standard that Amazon one one hand attacks the Independent Objector on grounds of conflicts of interest grounds while on the other hand has a community objection counsel who was clearly in a conflict of interest as a legal rights objection panelist in another ICANN objection proceeding making rulings (http://www.wipo.int/export/sites/www/amc/en/domains/lro/docs/lro2013-0020.pdf) that would be beneficial to Amazon by creating precedent (since Amazon was objected to in legal rights objections on similar grounds by Objectors).
I am shocked this is not bigger news. Amazon is getting away with a lot of things and no-one is really shedding much light on these issues. A double standard perhaps?
However, in Amazon’s defense in the case of their trademarked brand, they do have strong rights to run the string but should be open to giving sensitive regions in the Amazonas their corresponding domains and allowing them to use them without any exclusive access language.
I would call that a conflict of interest, just like how I don’t think firms should represent UDRP complainants/respondents if they are also panelists in other UDRP cases. Which case is Doug Isenberg representing Amazon on?
Andrew,
Your link above goes to an Amazon logo, not the PDF link. The PDF link of the .AMAZON case is: http://www.iccwbo.org/Data/Documents/Buisness-Services/Dispute-Resolution-Services/Expertise/ICANN-New-gTLD-Dispute-Resolution/EXP_396_ICANN_13-(c_-EXP_397_ICANN_14,-EXP_398_ICANN_15)_Expert-Determination/
The .MUSIC case with Doug Isenberg representing Amazon is: http://www.iccwbo.org/Data/Documents/Buisness-Services/Dispute-Resolution-Services/Expertise/ICANN-New-gTLD-Dispute-Resolution/EXP_461_ICANN_78_Expert-Determination/
Other ones include:
http://www.iccwbo.org/Data/Documents/Buisness-Services/Dispute-Resolution-Services/Expertise/ICANN-New-gTLD-Dispute-Resolution/EXP_479_ICANN_96_Expert-Determination/ (.SONG)
http://www.iccwbo.org/Data/Documents/Buisness-Services/Dispute-Resolution-Services/Expertise/ICANN-New-gTLD-Dispute-Resolution/EXP_480_ICANN_97_Expert-Determination/ (.TUNES)
http://www.iccwbo.org/Data/Documents/Buisness-Services/Dispute-Resolution-Services/Expertise/ICANN-New-gTLD-Dispute-Resolution/EXP_487_ICANN_104_Expert-Determination/ (.CLOUD)
My question for ICANN, the ICC, WIPO and Amazon is why there is a double-standard in these objections when an Applicant’s counsel (in this case Amazon’s counsel) in multiple Objection cases (.MUSIC, .SONG, .TUNES, .CLOUD) can also be a Panelist for another Objection case (.FOOD). It was clear that Panelists in Objections (especially LROs) have used others’ determinations as precedent and also they will be used in future rounds in future Objection cases. How this was permitted by ICANN, the ICC, WIPO and Amazon is beyond me.
I am quite shocked Amazon took the “conflict of interest” angle while their own actions are conflicted with interest. We certainly asked the question in our Re-consideration request for .MUSIC, .SONG and .TUNES (http://www.icann.org/en/groups/board/governance/reconsideration/request-dotmusic-23dec13-en.pdf) and will await for that decision by the ICANN Board of Governance.
Simply put, If Amazon can get away with getting the .AMAZON objections dismissed over a conflict of interest then the same should happen in our cases (whether they are the Legal Rights Objections or the Community Objections or both) where Amazon had a conflict of interest in the overall new gTLD Objection process.
I do have an issue with this. On the one hand, Isenberg was involved with a LRO at a different provider, not a community objection at ICC. But still, I don’t think people should act as “judge” in some disputes and a lawyer in very similar disputes. Even if the person as the best of intentions and does not let this affect their work.
Given that ICANN has never addressed this similar issue in UDRP, I doubt they will address this as well.
As you can see this is intensely problematic and casts a dark shadow on the new gTLD Program as as whole, especially the Objection process.
While ICANN can sit back and not resolve UDRP problems, the new gTLD Program is different because new gTLD Objections are related to contention sets. One result in one Objection type (LRO or CO) can disqualify one Applicant in favor of another Applicant (e.g .CHARITY where PICs determined a winner – Famous Four over Donuts – or .SPORT where Objections in .SPORT and .SPORTS resolved the contention set). So having Panelists create precedent in Determinations to favor some Applicants (e.g Amazon in LROs) by making a determination against an Objector (Food Network) does impact other contention sets (e.g LROs for .MUSIC etc) since other Panelist can make Determinations which will be used as “precedent” to be used to favor certain Applicant types or Applicants overall. Smart move by Amazon but I think they opened up Pandora’s Box by attacking the Independent Objector in the .AMAZON objection and having the case against them dismissed over a conflicts of interest ground. You to not think this is a double-standard?
Bottom line, Legal Rights Objections and Community Objections are related to the same Program: the new gTLD Program and impact the entire Program and all Applicants with all these new precedents being created.
What do you think the repercussions are if ICANN, the ICC and WIPO do not do anything about all the Objection issues? Amazon does seem to have a lot of things going in their favor, even Panelists siding with Amazon on false facts e.g in the .MUSIC/.SONG/.TUNES cases where Panelist agreed with Amazon’s statements that that the music community is not dependent on the DNS/Internet for core activities or that the independent music is not strongly associated with “music” and even sided with Amazon to to ignore Amazon’s material change of position to change the strings from exclusive to non-exclusive which proved their guilt.
Do you think all these results in favor of Amazon are just coincidence? unfortunately the facts do not favor Amazon and a reasonable individual not involved in this process would assume that accountability and transparency would prevail in the end.