Three large applicants to the new gTLD program sent a letter to ICANN yesterday to complaint about the Experts appointed by The Dispute Resolution Service Providers relating to the Community Objection process especially those at the ICC and asked ICANN to “ask all contracted arbitrators to temporarily suspend their decision making until ICANN can conduct a basic level of training for the actual Expert Panels on the AGB guidelines and their interpretations.”
“Only Experts who are successfully certified by ICANN as being thorough with the AGB should be allowed to preside over objections. This kind of a training process would ensure that there will be lesser appeals to the actual Expert Determinations going forward.”
Here is the entire letter that was sumitted to ICANN By Radix, Top Level Domain Holdings (TLDH) and Jay Westerdal’s Fegistry, LLC.
“Expert Panels appointed by the DRSPs for the purpose of providing an Expert Determination on each community objection are 3 degrees removed from ICANN.”
“They do not have any prior experience with the new gTLD program or a deep understanding of the Applicant Guidebook (“AGB”).”
“:We have reason to believe that although ICANN may have spent significant amounts of time working with the personnel at the DRSPs, particularly the International Chamber of Commerce (“ICC”), to make them thorough with the AGB, the requisite knowledge and understanding of the AGB has not percolated down to the actual Expert Panels appointed by the ICC.”
“This is evident from the three (3) publicly available Expert Determinations (.Architect, .Fly, and .Gay), which display varying interpretations of the AGB, and in some cases a blatant disregard of the most fundamental aspects of adjudging the objections and their responses.”
“Our assertion that the relevant Panels either lack sufficient knowledge of the AGB or have varying interpretations of the guidelines within it is also corroborated by the inconsistent results on the same String Confusion objections.”
“We sincerely request ICANN to take proactive steps to prevent a similar situation for Community objections, seeing as the results of the Community objections could be more grave that that of a String Confusion objections in that the former could result in an application being withdrawn entirely”
“We are disappointed to say the least with the material of the Expert Determination rendered by the Expert Panel on the community objections to .Architect and .Fly.”
“We highlight a few glaring discrepancies between the AGB and the Expert Determination below:”
“The Panel has ignored the clear definition of the word “community” in the AGB”
“As applicants who have collectively staked hundreds of thousands of dollars in this program, each of us considered the term “community” as defined by the AGB very carefully when making our decision regarding whether we should apply for specific strings as “community” applications or “standard” applications.”
“Each of us individually came to the conclusion that the generic strings that we intended to apply for do not fulfill the criteria specified in the AGB to qualify as a “community”.
“Additionally, we also chose to NOT game the system by projecting these generic strings to be representative of communities in order to become eligible for Community Priority Evaluation (“CPE”), and gain exclusive rights to the generic string without going to auction. We did all of this because we genuinely believed that ICANN, and its contracted parties would be responsible for upholding the AGB definitions at every stage of the program.”
“Unfortunately, this has not been the case. ”
“The Expert Panel in the .Architect and the .Fly cases do not even mention the definition of the term “community” as defined by the AGB, let alone evaluate whether the alleged community in question in each Objection is really a “community” as per the AGB:”
“Community” – Usage of the expression “community” has evolved considerably from its Latin origin – “communitas” meaning “fellowship” – while still implying more of cohesion than a mere commonality of interest. Notably, as “community” is used throughout the application, there should be: (a) an awareness and recognition of a community among its members; (b) some understanding of the community’s existence prior to September 2007 (when the new gTLD policy recommendations were completed); and (c) extended tenure or longevity—non-transience—into the future.”
“Shockingly, the Expert Panel in both cases has simply assumed that the alleged community is a community, without considering any of the following:”
Whether the alleged community implies or demonstrates any form of cohesion. Has the Objector fulfilled his obligation to prove that there exists more of “cohesion” than a “mere commonality of interest” amongst the alleged “community of the (structural) architects of the entire world” and “the global internet search community”?
Whether there is an “awareness and recognition” of the community among its members. Has the objector proved that the (structural) architects and internet searchers of the entire world (the members) are “aware” and “recognize” the alleged communities that they supposedly belong to?
Whether the alleged “community of the (structural) architects of the entire world” and “the global internet search community” existed prior to September 2007. Has the objector proved that the “community” (and not the profession or the activity) existed prior to September 2007?
Whether there is extended tenure or longevity – non-transience – into the future. Has the objector proved that the alleged “community of the (structural) architects of the entire world” and “the global internet search community” demonstrate extended tenure or longevity?
Had the Expert Panel evaluated these questions, and come to a reasonably justifiable affirmative answer to even a few of them, and then come to the conclusion that the “community of the (structural) architects of the entire world” or “the global internet search community” is indeed a “community” as per the AGB, that would have been acceptable.
Instead, in point 61 of the .Architect Expert Determination, the Expert unjustifiably states, “The community of (structural) architects is clearly delineated. It is the community of the (structural) architects of the entire world.” That the Expert would simply make such a statement of his own accord, without stating his reasoning behind arriving at this conclusion as per the AGB is appalling.
And in case of the .Fly Expert Determination, the Expert states in point 39, “Before assessing the institution’s relationship with the community, the Expert first considers whether the community in question can be characterized as “clearly delineated”.”
In both cases the Experts basically ignored the AGB definition of the word “community”, and directly moved on assessing “clearly delineated”. Obviously, the Experts were not trained well enough to know that proving the existence of a “community” is a pre-requisite to proving the existence of a “clearly delineated community”.
The Panel equates the “clearly delineated community” test with “standing” to object
We are aware that for the objector to have “standing” to object, one of the criteria it must satisfy is that it must have an “ongoing relationship with a clearly delineated community”. As such it is obvious that the existence of a “clearly delineated community” is a pre-requisite to proving “standing”. However, the “standing” criteria are separate from and additional to the “clearly delineated community” test.
In spite of clear language in the AGB that defines “standing” and “clearly delineated community” individually, the Expert makes this statement in Point 59 of the .Architect Expert Determination, “For the present purpose of determining whether the “community invoked” by the UIA “is a clearly delineated community”, i.e. whether the UIA has standing to object, it is sufficient to note that the UIA invokes the community of the “architects” as understood by the UIA and which the applicant calls “structural architects”.”
The Panel makes unsubstantiated presumptions about the likelihood of Material Detriment
Instead of attempting to stick to the AGB criteria in order to determine the likelihood of Material Detriment, the Expert in the .Architect case senselessly spends page after page quoting sentences from the GAC’s Beijing Communiqué and the GAC’s Early Warnings. Clearly, the Expert was unaware of the fact that the GAC’s processes are independent of the Dispute Resolution process which he was appointed to resolve. Interestingly, the Expert does distance himself from other issues which are outside of the Dispute Resolution process such as the Objector’s own application for .Archi through an affiliate company. Additionally, the GAC proposed safeguards that the Expert has used in order to determine that there is a likelihood of Material Detriment have not even been accepted by the New gTLD Program Committee (“NGPC”). These continue to be “in dialog” as this letter is drafted and sent. In spite of this, the Expert has used the lack of these proposed safeguards as a criterion in his determination. It almost appears as if the Expert had made up his mind to uphold the Objection irrespective of the facts.
To make matters worse, some of the statements made in the Material Detriment section of the .Architect Expert Determination are outrageous in that they represent nothing more than the “Expert’s” personal opinion. Examples of such statements are:
“Internet users would necessarily assume that those who use the domain name .ARCHITECT are licensed architects.”
“Opening the domain name .ARCHITECT to others than the licensed architects, including for instance “landscape architects”, “naval architects”, “system architects”, would create an interference with the core activities of the community of architects.”
“The community of architects is clearly dependent on the DNS for its core activities, as nearly any community is nowadays.”
“…the early warnings by the Governments of Australia and France as well as the GAC Communiqué show the relevant nature and extent of concrete or economic damage to the community. They also confirm, to a relevant level of certainty, that the alleged detrimental outcomes would occur.”
The last statement is particularly disturbing since the Expert used the GAC early warnings and GAC proposed safeguards as factors to conclude with a relevant level of certainty that there will be concrete or economic damage to the community.
Clearly, the Expert wasn’t aware and did not bother to find out that the GAC issued 242 early warnings involving 145 strings. And the GAC has proposed additional safeguards for every proposed new gTLD, and explicitly named well over 100 strings affecting 520 applications in their Beijing Communiqué. Neither of these represents remotely conclusive evidence that the affected applications create a likelihood of material detriment to the community.
There are several other instances in the Expert Determinations that confirm our assertion that the Expert Panels simply have not adhered to the AGB while making their decisions.
It is extremely clear that the concerned arbitrators’ separation from ICANN and unfamiliarity with the AGB have resulted in grossly incorrect and unfair decisions being rendered.
Furthermore, the problem at hand is bound to multiply with several more Expert Determinations in the pipeline, unless ICANN takes proactive steps to address it immediately.
In light of the above, we urge ICANN to simply ask all contracted arbitrators to temporarily suspend their decision making until ICANN can conduct a basic level of training for the actual Expert Panels on the AGB guidelines and their interpretations. Only Experts who are successfully certified by ICANN as being thorough with the AGB should be allowed to preside over objections. This kind of a training process would ensure that there will be lesser appeals to the actual Expert Determinations going forward.
Additionally, we also urge ICANN to provide parties with a more targeted appeal mechanism specifically to deal with cases in which ICANN contracted parties have not followed the AGB in spite of the requisite training processes (in addition to the 3 currently proposed broad “accountability mechanisms” that ICANN has). Ideally, there must be someone within ICANN, who knows and understands the intent of the AGB, and should preside over the appeals that are made on the grounds that the AGB was not followed.
We would like to reiterate the fact that all of us have relied on the AGB and the enforceability of the clauses within the AGB to make our decisions. It is imperative for ICANN to oversee the implementation of standards set within the AGB, especially when ICANN’s failure to enforce the standards will likely result in setting a bad precedent for future rounds of applicants.
We thank you for taking the time to read this letter, and look forward to your response.
Sincerely, Shweta Sahjwani (Radix Registry) Reg Levy (Top Level Domain Holdings / Minds & Machines) Jay Westerdal (Fegistry, LLC.)