Judge faults Donuts on procedural grounds and the merits, so auction will go ahead today as planned.
An auction to resolve the .web top level domain name contention set will go forward today as originally planned. United States District Judge Percy Anderson denied (pdf) Donuts’ request for a temporary restraining order (TRO) to postpone the auction.
Donuts filed a lawsuit and request for the TRO because it believes rival applicant Nu Dot Co might be under new control.
Judge Anderson said that he would have denied Donuts’ request even if ICANN hadn’t responded to the TRO request.
He said the company made several procedural errors when filing its request. First, it didn’t make an effort to contact ICANN’s counsel about its request for a temporary restraining order (TRO) to discuss it. It also neglected to submit a proposed order with its request. Finally, it didn’t serve ICANN.
With ICANN’s response in hand, however, Anderson further ruled that he would not have granted the TRO based on the facts.
Based on the strength of ICANN’s evidence submitted in opposition to the Application for TRO, and the weakness of Plaintiff’s efforts to enforce vague terms contained in the ICANN bylaws and
Applicant Guidebook, the Court concludes that Plaintiff has failed to establish that it is likely to succeed on the merits, raise serious issues, or show that the balance of hardships tips sharply in its favor on its breach of contract, breach of the implied covenant of good faith and fair dealing, and negligence claims. Moreover, because the results of the auction could be unwound, Plaintiff has not met its burden to establish that it will suffer irreparable harm in the absence of the preliminary injunctive relief it seeks. The Court additionally concludes that the public interest does not favor the postponement of the auction.
Finally, the judge ruled that Donuts’ did not prove jurisdiction.
Anderson gave Donuts until August 8 to file an amended complaint to show jurisdiction.
Although the auction will go on as planned today, the lawsuit has placed a shadow of doubt on the procedure and result. Depending on what happens in the auction, Donuts might be able to delay the launch of .web by continuing with its lawsuit.
I have a poll running asking people how much they think the .web top level domain auction will close for.