The fallout from the .Sport objection continues as 12 new gTLD applicants sent a letter to ICANN today signed “expressing our ever-growing concerns relating to the Community Objection process”.
The letter was signed by Radix Registry and co-signed by 11 new gTLD applicants, United TLD Holdco Ltd., DotClub Domains, LLC, Top Level Design, LLC, Donuts Inc. Top Level Domain Holdings Ltd, Priver Nivel S.A. , Fegistry, LLC, Employ Media, LLC, Famous Four Media Limited, Merchant Law Group, LLP, and DOTSTRATEGY CO.
Here is the letter:
“”We, the undersigned, are writing to express our ever-growing concerns relating to the Community Objection process.”
Some of our concerns in this regard have already been communicated to you in two letters, dated 22nd July 2013 and 24th September 2013.
Unfortunately, the issues surrounding Community Objection determinations are growing, and we are more concerned than ever that this process, and therefore the entirety of the New gTLD Program, is being corrupted by significant departures from the Applicant Guidebook (AGB).
The undersigned strictly followed and relied upon the AGB throughout the application process.
This included consideration about whether or not to apply for strings that may have been subject to Community Objections or contested by Community Priority Applicants.”
We were part of the ICANN community’s discussion that set a high bar for prevailing Community Objections and resulted in the high standard that is in the AGB. The analysis we present herein related to the ICC’s Expert Panels shows a disregard of the model and the standards set forth in the AGB. This is intolerable and deserves immediate mitigation.”
While the decision regarding .SPORT provided by the expert can be questioned in all four criteria, the analysis is most clearly erroneous and is in clear contradiction of the AGB with regard to two specific criteria: community definition, and the likelihood of material detriment.”
Specifically, the record clearly demonstrates that panelists are not considering the very stringent definition of “community” set forth in the AGB.
The decisions to date indicate that panelists are employing their own personal assumptions of “community” or have accepted the objectors’ definition of “clearly delineated communities” without question. Additionally, panelists are ignoring the AGB requirements for a showing of material detriment. Among those requirements is the objector’s burden to prove that its community is likely to be adversely affected by the delegation of the string in question.
Please note that the undersigned represent a variety of companies, including both single-string applicants and portfolio applicants, not all of which are facing community objections. We must stress that this is an issue that affects the entire New gTLD Program and ICANN community, and the support of applicants not directly affected by Community Objection proceedings speaks to our shared interest in strictly adhering to all AGB procedures.
To recap our prior correspondence, the first letter brought to ICANN’s attention the fact that Expert Panels appointed by the DRSPs for the purpose of providing an Expert Determination on each community objection are three degrees removed from ICANN.
They have neither prior experience with the new gTLD program nor a deep understanding of the AGB.
It was then explicitly suggested that these Expert Panels should be provided with training or education materials that reinforce certain standards—primarily that the Panels must strictly follow the AGB to arrive at Expert Determinations. We are concerned that this process was never put into place.
The second letter pointed out specific examples of serious lapses on ICC Experts’ parts in the Expert Determinations for .ARCHITECT and .FLY.
The letter was a sincere attempt to inform ICANN of the fact that, although ICANN may have spent significant amounts of time working with the personnel at the DRSPs to familiarize them with the AGB, it is clear that the requisite knowledge and understanding of the AGB has not been successfully conferred to the actual Expert Panels appointed by the ICC.
It was also recommended that ICANN should make appropriate appeal mechanisms available to parties who have been materially affected by decisions that departed from AGB standards. Finally, we urged ICANN to consider temporarily suspending all objection adjudications until a certain basic level of training was conducted to ensure that all concerned Experts are well versed with the AGB.
The response that was received from ICANN to this letter was disappointing, to say the least, given that ICANN’s only follow-through was a simple acknowledgement of the correspondence, with no forthcoming engagement on these very serious issues.
Although the form response we received from Customer Service claimed that our comments would be “considered carefully,” we believe this assurance was not genuine . We say this because the ICC recently published an Expert Determination on a community objection against an application for the .SPORT1 generic TLD which, again, is fatally flawed.
In particular, we draw ICANN’s attention to at least five examples of glaring errors in this determination, which prove that at least one of ICC’s Experts is not familiar with the AGB or its intent.
1. The Expert reported that,“the concept of ‘community’ is not defined by the ICANN Guidebook.”
2 Clearly, the Expert did not know that the concept of “community” is actually explained by the ICANN Guidebook: “’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.”
3. We reiterate that the above definition of the term “community” was relied upon by all applicants whilst making their decisions to stake hundreds of thousands of dollars applying as standard applicants for generic strings in the new gTLD Program.
It is absolutely unfair and unacceptable for an application to be rejected under the premise that the concept of “community” is not defined in the AGB.
This is blatantly untrue and to disregard this is to compromise the integrity of the AGB, the New gTLD Program, and ICANN.
We understand that the above description of “community” is referenced with regard to community applications; however, the context is relevant to “community” objections as well. This is because, like a community application, a community objection that is upheld directly eliminates the bona fide standard application against which it is filed. Consequently, it is the Expert’s duty to thoroughly test the existence of a “clearly delineated community” as per AGB descriptions before eliminating the standard application from the program altogether.
While the Expert is clearly aware that the objector needs to prove that “the application creates a likelihood of material detriment…”, none of the factors that were considered included anything about the application. The Expert did not identify a single objectionable or lacking aspect in the application that creates a likelihood of material detriment.
The Expert states:
In this case, the Expert opines that “likelihood” is equivalent to “future possible.”
It almost appears as if the criteria have been deliberately weakened in order to allow the objector to prevail. In fact, the Expert even made this statement:
“…Expert agrees with Applicant that many detriments alleged by Objector are purely hypothetical…”
In spite of this, the Expert ruled in favor of the Objector.
If the Expert’s current logic is followed, every application, including the Objector’s own application, creates “possible” damage.
In this case, an allegation of material detriment against any application would be upheld because there is future “possible” damage. How can any applicant guarantee that it is “not possible,” in all conceived hypotheticals, for any future damage to occur?
The .SPORT ruling leaves no doubt the panelist replaced the word “likelihood” with the word “possibility” thus materially altering AGB fourth test to read as follows:
“The application creates a likelihood possibility 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.”
Procedurally, the guidebook explicitly does not provide the panelist with discretion to change the burden of proof the objector bears. If this is not true, then ICANN did not notify applicants and other interested parties of such discretion provided to the panelist. Either way a procedural error has occurred. In the spirit of fairness and due process, we call upon ICANN to incorporate an appeals process for exactly such procedural errors in the community objection proceedings.
• The Expert has erroneously considered the “economic damage” that the objector “may suffer.”6 Instead, he was supposed to consider the “nature and extent of damage to the reputation of the community represented by the objector…”. It appears that the Expert misread the AGB or inappropriately assumed that the Objector IS the “sports community.”
• The decision provides no evidence that the Expert even considered the “level of certainty that alleged detrimental outcomes would occur.” As noted above, in point 3, unlikely and hypothetical situations have been given credence over any level of certainty.To evidence that unbiased industry insiders share our viewpoint on this subject, please take note of two recently published relevant articles, both by reputed journalists who are not participants in the new gTLD program:
. 1) https://www.thedomains.com/2013/10/29/wow-icc-upholds-objection-of-sportsaccord- to-famous-fours-app-for-new-gtld-sport-giving-sportaccord-the-extension/. In this case, the title itself expresses shock over this Expert Determination.
. 2) http://domainnamewire.com/2013/10/29/breatheaccord-wins-community-objection- against-breathe-top-level-domain-name/. This article is a satirical response to the above news that the .sport objection was upheld. It shows the extent to which the journalist found the .sport decision to be unmerited.
We also bring to ICANN’s attention the fact that objectors on other unrelated cases are citing these decisions in their Supplemental Submissions in order to influence Experts to weaken the objection criteria and rule in their favor.
If these are considered to be precedents for other Experts, we can assure you that most community objectors will unfairly prevail over applicants who applied as standard applicants in good faith.
Not only does this situation cause immense commercial damage to the affected applicants, but also sets a precedent for future application rounds where applicants cannot rely on the application documents and ICANN can expect absolutely any applicant to use (or rather, abuse) the community objection process as its first attempt at contention resolution.
These current decisions by ICC Experts will probably be used as grounds for rejecting future applications on the most generic words.
ICANN should immediately rectify this obvious deficiency. ’We sincerely request ICANN to take a more active role in the Dispute Resolution Process altogether.
This includes impressing upon the ICC that its Experts need appropriate training before additional decisions are published to avoid any further inadequate decision making, by ensuring that the AGB is followed for future cases, and by putting in place an appeals mechanism so that procedural errors such as those in the .sport decision can be rectified.
As applicants in the program, we are confident that ICANN will do the right thing, and ensure that its contracted parties uphold the AGB at any cost.
We thank you for taking the time to read this letter, and look forward to a positive and constructive response from you.””
Sincerely,
Shweta Sahjwani, RadixFZC
United TLD Holdco Ltd
DotClub Domains, LLC
Top Level Design, LLC
Donuts Inc.
Top Level Domain Holdings Ltd
Priver Nivel S.A.
Fegistry, LLC
Employ Media, LLC
Famous Four Media Limited
Merchant Law Group LLP
DOTSTRATEGY CO.
a big battle to own TLDs that are doomed to make low revenues
who wants to make money must always invest in .com domains
This letter is filled with inconsistencies. These Applicants claim they relied on the Applicant Guidebook but they still circumvent it to engage in Private Auctions not the approved ICANN Auctions as defined in the Applicant Guidebook. Why? Because they profit whether they win or lose. The other inconsistency is why don’t these Applicants not complain about Legal Rights Objections decisions in their favor which allow them to illegally piggyback others’ work? Where is the consistency?
Also, what I do not understand is the concept by these Applicants that if you are a relevant group representing a significant portion of the community you should not be able to object.
How is Donuts, TLDH and Famous Four monopolizing all the generic strings at the expense of communities benefit the Internet?
How does Donuts, Famous Four, TLDH, Google and Amazon winning TLDs by “buying” them in an auction scenario fulfill ICANN’s goals to increase diversity reflecting stakeholder communities?
How does the Internet benefit if 5 companies run over 500 TLDs while trying to “squash” relevant communities for a quick buck or to just merely to sustain their monopoly in the marketplace?
This is all about ROI for these portfolio applicants and they circumvent the AGB where it favors their cause, their pocketbooks and story to work.
If ICANN would do the right thing they would uphold GAC advice and ICC resolutions and not make this into a commercial landgrab by a few greedy Applicants who feel entitled to “own” the entire namespace because they raised a lot of money, which seems to be the only criteria to winning it seems. Should ICANN not care about accountability to the community (.SPORT decision), monopoly (.POLO decision), or enhanced safeguards to protect communities (.ARCHITECT decision).
The ICANN community should realize what is really happening here. A few companies carving out the namespace. If ICANN agrees to these claims then perhaps ICANN should change itself to a for-profit status because the end result will be the ICANN auctions. How do the ICANN auctions serve its goals to increase diversity reflecting stakeholder communities?
The intentions of most of these portfolio Applicants are obvious. To force communities and other single Applicants into private auctions so they can be paid off to leave. Win if you win and win if you lose. This is gaming at its greatest.
My prediction is if ICANN defies GAC and ICC Community Resolutions they risk their very existence. The namespace is not for sale. These portfolio Applicants should beware where they are treading because they risk lose everything.
What is next? These Portfolio Applicants sending letters for each CPE result and grading CPE themselves? Oh wait, Donuts just did that for .IMMO and .TAXI. Unbelievable.
Wake up ICANN Community and realize what is going on here. Another slap in the face of communities and diversity.
How can an entity like Donuts, Famous Four or TLDH want to run community-driven TLDs such as .SPORT or .MUSIC when they discredit the relevant opinions of such communities or publicly claim that the opinions of relevant communities have no standing and should be ignored because they are not “clearly delineated”?
Question is whether it is in the global public interest for these Applicants to run such semantic extensions with such attitudes and disdain towards the opinions of those communities? Their true colors are coming out. It is all about the money. Let us hope ICANN does not take their side because they want to profit through ICANN auctions at the expense of relevant community opinions.
My dollar, not my 2 cents.
Constantine
.MUSIC
Constantine
I think the concept that one organization represents all sports throughout the world is just plain silly.
Especially considering if you asked 100 sports fans in the US if they ever heard of SportsAccord I would say 100 will say they have not.
So how can an organization that no one has in the US has ever heard of be the representative of all sports
What is the relationship between sportsaccord and the NFL, or the NCAA or the NBA or the NHL or NASCAR or the PGA.
I know its a big world and the US is just a part of it, but its a big part and can’t be left out
Exactly
@Michael.
I think if you asked the question differently you might get a different response from sports fans and people like the NFL.
Ask them if they want the .sport extension run by an organization that represents the interest of sports communities or one that doesn’t. I think you would find a completely different answer. What do you think?
One thing you might want to also consider when thinking about US sports is to disconnect the media machine of US sports and consider the actual sport run by the NFL. Using your argument of the NFL you put forward. Just by checking the SportAccord site I can see that one of their members is International Federation of American Football. One of their members is USA Football, Footballs National Governing Body which is also the official development partner of the NFL and more than two-dozen NFL franchises, several Arena Football League teams and college football programs presently partner with USA Football .
So although you might not see Sport Accord on the TV Timeout during the Monday night game this doesn’t mean they are not part of the Sport Community and more importantly that the NFL is not part of the wider sport community.
Rob
Michael,
You seem to be missing the point and you are turning this into the portfolio argument that there needs to be one organization that has the signed approval from every single sports community person on the planet to be legitimate and have any standing. How is that even possible and why would ICANN set up such a requirement when their Mission is to advance diversity and participation?
I doubt ICANN is so inconsistent but of course the portfolio applicant spin has been overwhelming within the ICANN community. They think that the more times they say there is no community for any string, the easier it will stick. It does not.
The real point here is whether a community-based application would do a better job with the endorsement of its constituents versus applicants who are planning to run tens or even hundreds of extensions without any accountability?
If you want the new gTLD Program to succeed and promote diversity you need adoption by respective communities. These portfolio applicants have no respect for any community or GAC opinion or any accountability towards any community because their responsibility is towards their investors. Famous Four preaches a .SPORT or .MUSIC Governance Council but discredit the opinions of the community at hand. How does that add credibility to their goals? Just shows how some are seeing these new gTLDs: as dollar signs.
You are looking at the New gTLD program and the the community approach under the scope of a narrow, dangerous concept which claims that there is no such thing as a clearly delineated community or that a coalition (under a name such as SportAccord) representing a significant portion of a community with shared interests does not have any legitimacy. That is a flawed argument since those organizations do represent a significant portion of that community and the entire sports space would not be the same without them. So I suggest we look at the big picture and what serves Internet users best. It is quite a simple concept actually and I doubt anyone would disagree that a .sport under a community approach is a worse approach than a commoditized, open .sport approach run by a portfolio applicant.
Bottom line is that sports are global and interconnected and the common interest of ensuring accountability towards the sports community is aligned with the genuine community-based TLD effort that a .sport extension be run by legitimate constituents of the sports community.
Making the argument that no entity of relevancy can represent the common, shared interests of a community is not only a weak argument, it is an argument that goes against what would be in the best interest of the public and increase trust. Last time I checked .EDU and .GOV were trusted gTLDs because of the accountability and trust they bring as restricted TLDs. Can you make arguments that .EDU and .GOV are a failure? Sometimes it is not about registration volume and profit maximization.
Donuts, Famous Four, TLDH etc are about the quick buck without any accountability. Their plan is to commoditize each extension at the expense of the community and a possible exit strategy at the end. The result if Donuts or Famus Four win would be: a weakened adoption by the sport community, big bucks to ICANN through auctions and the portfolio applicants’ investors laughing all the way to the bank.
How can diversity be determined by merely deep pockets and an auction where the highest bidder wins? How does that serve the public interest? Perhaps we need to stop talking about the “delineation” question because it has been conveniently pitched by portfolio applicants within the ICANN community as “no one has community”, “there is no community”, “no-one can represent a community’s shared interest” etc. I doubt the goals of ICANN was not to allow legitimate communities to have standing to object or win CPE. But you still see Donuts submitting CPE letters trashing .IMMO and .TAXI just to add 2 extra TLDs to the hundreds they will win or just to push them to private auctions where they would win if they lose. I sometimes feel ashamed of being part of this community where a select few paint a bad picture for the entire space and the domain industry as a result is considered by many as “shady” and “corrupt.”
As a suggestion, perhaps people need to start supporting diversity, the goals of ICANN and what would benefit the new gTLD program. CPE Community applicants are composed of under 40 community applicants in relation to a total of 1900 applications. That is a small minority of total applications. If the portfolio guys had it their way they would trample on all of those applicants. How about some diversity and looking after the interests of minority applicants whose objective is not profit maximization but creating a quality, product and brand not a commoditized TLD. We all know we have a lot of those commodity TLDs in the marketplace which will never compete with .COM and we certainly can’t just launch more of the same.
I am glad that Donuts, Famous Four and TLDH are making these public statements. It reveals a lot about the possible direction of the new gTLD program. I hope ICANN does the right thing for the Internet and the communities affected.
Constantine
.MUSIC
Constantine
I can’t tell you how many ICANN sessions I sat through where they said community will not apply unless you have a definable Geo region.
In sports there are players who make a living playing sport, amateur sports players, college sports players, owners, fans, people who play sports in formal and informal leagues there are 30 sports in the world.
So while one representative doesn’t have to be the only representative, they should logically overwhelmingly represent the vertical
So if that was bad information then they should have said so it in session during ICANN meetings.
Michael,
I have never been to a community-based TLD session where such a comment was made by ICANN. If you have a link to that session I would love to see it. And then again ICANN has given a lot of bad information and the entire CPE part of the AGB was something that was not created taking into consideration community input. It was a section of the Guidebook that ICANN was very adamant to not changing. I know I have asked ICANN about the reasoning why the threshold was 14 points and not 12 points and how they devised that number. No response by ICANN. I also warned against synonyms and clashes but again at no avail. I think we need to apply some common sense in the system we have but as many would say ICANN and common sense sometimes do not blend well together.
Actually the Applicant Guidebook and CPE Guidelines were clearly written to accommodate all types of communities. They even list examples of non-geo regions.
Representing the community sharing a common, shared interest is the language used. The language of the Guidebook does not say that they need to represent every single interest. That would be impossible to achieve. However communities do have common, shared bonds which is all the AGB is asking. Merely saying that “language” or “region” are the only communities that can qualify is inconsistent with the term “community” as defined in the Applicant Guidebook.
I would suggest applying some common sense in this process. If the community support is not genuine and is considered irrelevant to the common interests of that particular community then I agree, the applicant should not qualify.
Constantine
.MUSIC