The ICC has Upheld the Community Objection of SportAccord against the application of Famous Four for the new gTLD .Sport
SportAccord is also an applicant for the new gTLD .Sport, actually the only other applicant for .Sport so what this ruling means if it stands, is that Famous Four’s application for .Sport will be rejected and SportAccord will wind up with the new gTLD .Sport.
The ICC panel found that SportAccord represented the community of Sports.
There is also a new gTLD application .Sports filed by Donuts.
Here are the relevant findings by the one member panel:
SportAccord is a not-for-profit association established since 1967 and has:
(i) 91 full members: international sports federations governing specific sports worldwide, and
(ii) 16 associate members: organizations which conduct activities closely related to the international sports federations.
In Objector’s words, “SportAccord is the umbrella organization for both Olympic and non-Olympic international sports federations as well as organisers of international sporting events”.
To qualify for standing for a “Community Objection”, the Objector shall fulfill two conditions, namely that (i) it is an established institution, and (ii) it has an ongoing relationship with a clearly delineated community.
SportAccord (previously known as “GAISF”, the General Association of International Sports Federations) is a not-for-profit association established in 1967.
The length of time that SportAccord has been in existence –almost half a century– is sufficient, in the Appointed Expert’s view, to consider Objector as a long- established institution and clearly evidences that such association was not creat- ed with the sole intention to participate in the gTLD application process.
Additionally, the Appointed Expert notes that Objector also meets the stand- ard of “global recognition”, as mentioned in the ICANN Guidebook, since it has a very large membership, comprising of 91 international sports federations and 16 organizations related to sports. In the Appointed Expert’s opinion, this is also in- dicative of Objector’s public historical evidence of its existence.
Even though Applicant has relied on a survey according to which Objector is hardly known to the majority of the public surveyed,20 it is the Appointed Expert’s view that the level of global recognition of any institution should be analysed with-in the context of the community that such institution is claiming to be a part of, not the public in general.
Based on these reasons, the Appointed Expert concludes that Objector is an “established institution” in the terms of Article 22.214.171.124 of the ICANN Guidebook.
Having decided that Objector meets the first standard contained in the ICANN Guidebook, the Appointed Expert now turns to the issue of whether Objector has an on-going relationship with a clearly delineated community.
To make a determination on this issue, the Appointed Expert should take into account the guidelines provided in Article 126.96.36.199 of the ICANN Guidebook. To this end, such provision sets out the following elements to be considered: (i) the presence of mechanisms for participation in activities, membership, and leader- ship, (ii) the institutional purpose related to the benefit of the associated communi- ty, (iii) the performance of regular activities that benefit the associated community; and (iv) the level of formal boundaries around the community.
Referring to these factors, the ICANN Guidebook states that “the panel will perform a balancing of the factors listed above, as well as other relevant infor-mation, in making its determination.
It is not expected that an objector must demonstrate satisfaction of each and every factor considered in order to satisfy the standing requirements”.
Applicant has challenged Objector’s standing on the grounds that it only has an on-going relationship “with a particular subset of stakeholders” and not the community as a whole
In the Appointed Expert’s view, Applicant’s argument is not convincing. First, because even though Objector may not represent the “entire” Sport Community, it acts for a preponderant part of such community.
The ICANN Guidebook does not require that an “entire” community agree on an objection to an application.
In fact, it would be almost impossible for an institution to represent any community as a whole. If such was the requirement, there would be no reason to provide for the possibility of community objections.
It is difficult to imagine which other association may claim representation of the Sport Community besides an institution that represents, as Objector does, more than a hundred well-known sports federations and institutions related to sports.
Furthermore, Objector’s declared purposes are closely associated with the benefits of the community members it represents and its regular activities are naturally intended to benefit its members.
In addition, the Appointed Expert notes that Objector, as an institution that represents multiple sports federations, has explicitly foreseen through its statutes different mechanisms for participation in activities, membership and leader- ship among the sport federations and organizations. For instance, SportAccord’s statutes regulate in detail the procedure to become a member of the institution and participate accordingly
“The objectives of SportAccord are:
a) to promote sport at all levels, as a means to contribute to the positive development of society;
b) to assist its Full Members in strengthening their position as world leaders in their respective sports;
c) to develop specific services for its Members, and provide them with assistance, training and support;
d) to increase the level of recognition of SportAccord and its Members by the Olympic Movement stakeholders as well as by other entities involved in sport;
e) to org anise multi-sports games and actively support the organization of multi-sports games by its Members;
f) to be a modern, flexible, transparent and accountable organization;
g) to organize, at least once a year, a gathering of all of its Members, and of other stakeholders of the sport movement, preferably on the occasion of its General Assembly;
h) to recognize the autonomy of its Members and their authority within their respective sports and organization;
i) to promote closer links among its Members, and between its Members and any other sport organization;
j) to coordinate and protect the common interests of its Members; k) to collaborate with organizations having as their objective the promotion of sport on a world-wide basis;
l) to collect, collate and circulate information to and among its Members”.
In analyzing Objector’s statutes, membership is open to “any sport organization… which groups together the majority of the National Federations (or organizations) throughout the world practicing its sport and regularly holding international competitions…” and “any sport organization which groups together the activities of several members… for the purpose of organizing competitions”,which shows that membership, far from being closed and exclusive, is accessible to any organization which complies with these minimum standards.
Therefore, in the Appointed Expert’s view, SportAccord is an established institution which has an ongoing relationship with a clearly delineated community and, consequently, has standing to object to Applicant’s application in the present case.
Objector’s position is that the Sport Community “is highly organized” both at a local level (local clubs, etc.) and a higher level (Sport Community governance is exercised by regional, national, and international Sport Federations, which collaborate at the local, national and international levels in sport events or with event organizers, governments, the various bodies of the Olympic Movement, associations or federations).
Even though Objector states that it represents 107 International Sport Federations, individual practitioners of sport, sport spectators, sport fans and sport sponsors are also part of the Sport Community and share their values and objectives.
Applicant states that Objector acknowledged that the Sport Community is comprised of “billions of members” and, consequently, a community comprising the majority of the human race is not clearly, or even slightly, delineated.
I is the Appointed Expert’s view that the community represented by Objector (international sports federations and organization) enjoys a high level of public recognition in its field and has existed for decades.
Further, since it was established in 1947, it has succeeded in increasing the number of its members, rather than becoming smaller or less representative.
Further, regarding the “number of… entities that make up the community”, an aspect that the ICANN Guidebook highlights as relevant, the Appointed Expert notes that Objector is comprised of 91 well-known international sports federations and 16 organizations related to sports.
If SportAccord had not obtained a high level of recognition in the sport field since it had been established, some of the well-known federations included in such association would not have remained part of it.
In any event, the Appointed Expert understands that this is not a case in which a single sport association or organization claims for the priority use of the “.sport” gTLD irrespective of other federations or organization which could claim for the same right or interest–, but the whole community of sports federations and organization (or, at least, the most part of it) represented by Objector.
Finally, the Appointed Expert cannot accept Applicant’s argument that the Sport Community is not organized when Objector has proved that it has its own mechanism of participation, programs and organization through its statutes and government bodies. The fact that the media (which may constitute a different community) or viewers are unable to be part of this association is irrelevant to consider Objector as a delineated community. Otherwise, no community could be recognized under the ICANN gTLD proceedings since it would be easy for any Applicant to find secondary or not closed-related members outside of it.
The “Sport Community”, in the Appointed Expert’s view, is a community that clearly distinguishes itself from other communities by its characteristics, objectives and values.
Therefore, the Appointed Expert concludes that the Sport Community is clearly delineated for the purpose of these proceedings and, consequently, Applicant’s objections in this respect must also fail.
C. The “Substantial Opposition” to the Application
(3) Is there a substantial opposition to the application for the “.sport” gTLD on behalf of a significant part of the Sport Community?
Having decided that the Sport Community is clearly delineated, the Appointed Expert now turns to determine whether there is a substantial opposition to the application for the “.sport” gTLD on behalf of a significant part of the Sport Community.
In order to determine the appropriate standard to evaluate the Objection, it should be noted that Article 3.5.4 of the ICANN Guidebook does not require that the “entire” community expresses its opposition. Rather, it requires that Objector proves a “substantial” opposition within the community it has identified itself as representing.
Therefore, the Appointed Expert is of the view that the argument on the “relative low number” of oppositions compared to the composition of the Sport Community, as put forward by Applicant, should be balanced with the relevance and representative nature of each opposition within the community.
For instance, in the present case, the opposition made by an individual rugby player or fan will not have the same weight in order to determine if an objection represents substantial opposition as the one made by the International Rugby Board.
In this respect, the Appointed Expert is satisfied with the evidence produced by Objector, which includes 55 letters of opposition submitted by different recognized sport federations,46 together with other statements from different reputable sport organizations and specialized agencies, such as the International Olympic Committee (IOC), the World Anti-Doping Agency (WADA) or the United Nations Office on Sport for Development and Peace (UNOSDP).
Aside from this, the Appointed Expert notes that Objector represents all its members in these proceedings. Indeed, in accordance with its internal organization, the fact that SportAccord’s Executive Council has decided to object to dot Sport Limited’s application implies that all members of the association are deemed to have agreed to such decision to object.
Therefore, to require individual letters from all SportAccord’s members –as Applicant has suggested– is simply redundant.
The fact that other sport federations represented by Objector did not explicitly object to dot Sport Limited applica- tion should not be seen, in the Appointed Expert’s view, as an opposition to SportAccord’s claim.
Consequently, based on the representative nature of the Objector for the Sport Community, the relevance of the entities which have expressed their opposition (either individually or through the Objector) and the global recognition of the entities which are represented by Objector in these proceedings, the Appointed Expert concludes that there is a substantial opposition to the application “.sport” gTLD on behalf of a significant part of the Sport Community as established in Article 3.5.4 of the ICANN Guidebook.
Is the Sport Community explicitly or implicitly targeted by the application “.sport” gTLD?
The next issue to be decided by the Appointed Expert is whether the Sport Community has been explicitly or implicitly targeted by the application for the “.sport”
In the Appointed Expert’s opinion, since the community represented by Objector is the “Sport Community”, it is evident that the application for “.sport” gTLD made by Applicant explicitly targets such community.
Having recognized that the Sport Community is clearly delineated, it cannot be denied that there is a strong (or even identical) association between the ap- plied-for gTLD string “.sport” and the community represented by Objector.
Therefore, the Appointed Expert concludes that the Sport Community has been explicitly targeted by the “.sport” gTLD.
The Appointed Expert has to decide on the likelihood of material detriment to the rights or legitimate interests of the Sport Community in the event that the application process ends with the adjudication of the string (“.sport”) to Applicant.
The Appointed Expert first notes that, in accordance with Article 3.5.4 of the ICANN Guidebook, “the objector must prove that the application creates a likelihood of material detriment to the rights or legitimate interests of a significant portion of the community to which the string may be explicitly or implicitly targeted. An allegation of detriment that consists only of the applicant being delegated the string instead of the objector will not be sufficient for a finding of material detriment”.
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, name- ly 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.
In this regard, the Appointed Expert agrees with Applicant that many detriments alleged by Objector are purely hypothetical, such as the risk of cybersquatting, ambush marketing or the misuse of sport themes for purposes foreign to sport values.
Notwithstanding so, the Appointed Expert is of the opinion that Objector has proved several links between potential detriments that the Sport Community may suffer and the operation of the gTLD by an unaccountable registry, such as the sense of official sanction or the disruption of some community efforts.
Regarding the economic damage that SportAccord may suffer, the Appoint- ed Expert is of the view that although the figures and calculations on negative externalities provided by Objector may have been exaggerated, the risk of economic damages which would be inflicted to Objector due to the operation of the gTLD by an unaccountable registry shows a reasonable level of certainty and could not be avoided if the application is allowed to proceed.
Therefore, the Appointed Expert is not in a position to accept Applicant’s argument that Objector’s alleged detriment only relies on the fact that Applicant would be delegated the “.sport” gTLD instead of Objector.
Finally, even though SportAccord has not proved that dot Sport Limited will not act (or will not intend to act) in accordance with the interests of the Sport Community, the Appointed Expert considers that this is only one factor, among others, that may be taken into account in making this determination. Conversely, the Appointed Expert sees a strong dependence of the Sport Community on such domain name.
For these reasons, the Appointed Expert concludes that there is a strong likelihood of material detriment to the rights or legitimate interests of the Sport Community if the application “.sport” gTLD is allowed to proceed.
Having read all the submissions and evidence provided by the Parties, for the reasons set out above and in accordance with Article 21(d) of the Rules of Procedure, I hereby render the following Expert Determination:
The “Community Objection” which has been put forward by SportAccord in these proceedings is successful.
Objector SportAccord prevails.
The ICC Centre will refund SportAccord the advance payment of costs it made in connection with these proceedings.