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Thinking Carefully About New gTLD Objections: Limited Public Interest (Part 2 of 4)

Don Moody

The second installment in my four-part series on New gTLD objections (see part 1) will focus on the limited public interest ("LPI") variety. The overarching theme however is essentially the same: new gTLD objections are generally more complicated (and costly) than UDRP actions and need to be approached with care. In fact, LPI represents one of the best examples of the tough climb that would-be objectors are likely to face. Understanding exactly what is required beforehand — and whether or not you can deliver — is absolutely critical.

Standing Is Subject to the "Quick Look" Filter

As with all objections, we start by checking to see whether or not an objector has standing to bring a claim. AGB § 3.2.2. The standing requirements for LPI are not particularly difficult to meet. In fact, according to the Guidebook, there are "[n]o limitations on who may file" a LPI objection. That being said, there are two items worth bearing in mind. First, LPI is one of the two objection types that the Independent Objector ("IO") may bring (the other being community-based). AGB § 3.2.5. Second, ICANN has included a "quick look" ("QL") procedure specifically for LPI objections, which requires panelists to consider whether a claim is "frivolous and/or abusive." AGB § 3.2.2.3. ICANN specifically states that it intends for the lower standing threshold for LPI to be offset by the use of the QL mechanism to prevent exploitation. Id.

The Quick Look Procedure Imposes Certain Initial Hurdles

An objection should be rejected under the QL if it is "manifestly unfounded" and/or an "abuse of the right to object." Id. The QL "is the Panel's first task, after its appointment by the dispute resolution service provider (DRSP)," though an objection that is manifestly unfounded or abusive "may be dismissed at any time." Id. The QL is an "expert determination" and considered to be "on the merits," as detailed more fully in Articles 2 and 21 of the ICANN New gTLD Dispute Resolution Procedure and in AGB § 3.4.6.

An objection is "manifestly unfounded" if it does not fall within one of the specific grounds given in the appropriate objection standard. Id. An objection is an "abuse of the right to object" if it either: (a) involves multiple objections filed by the same or related parties against a single applicant; or (b) "attacks the applicant, rather than the applied-for string." Id. A few simple examples can help illustrate these concepts.

Assume that objector O files an objection against applicant A arguing that A's application for .STRING should be rejected because there is substantial opposition by a significant portion of a community to which O belongs. Of course, community opposition is not part of the LPI standard — that is what community-based objections are for. AGB § 3.5.4. As such, O's objection fails because it does not "fall within one of the categories that have been defined as the grounds for [the LPI] objection."

Next, also assume that O files twenty-seven (27) other objections against A, either in its own name or using other related entities (e.g., O Inc., O LLC, O Ltd., etc.). First, the simple fact that O chose to file 28 additional objections against A's application does not make O's potential claim any stronger. Rather, the sheer number of objection may be an indication that O's goal is more focused on harassing A than raising any legitimate grievances, and would therefore constitute an "abuse" of O's right to object. AGB p. 3-7. Note that the original community-related objection could be seen as both "manifestly unfounded" (as it is not an enumerated LPI objection ground) and "abusive" (as it was submitted along with a large number of other objections by the same applicant). See AGB p. 3-6.

Lastly, assume that one of O's objections states that A's application should be rejected because A is a "shady company." This objection would also fail because it targets the applicant (A) and not the applied-for string (.STRING). The question of whether A may or may not be a "shady company" is completely immaterial for purposes of the LPI objection. The Guidebook includes other methods (e.g. background checks, financial evaluations, etc.) for determining an applicant's qualifications or fitness to run a TLD.

Logistics and Cost-Planning

The International Centre for Expertise of the International Chamber of Commerce ("ICC") has been designated as the DRSP for LPI objections. AGB § 3.2.3. Like string confusion objections, all documents are filed electronically and in English. The ICC will administer objections under its "Rules for Expertise," which have been supplemented by a "Practice Note" specifically covering New gTLD related issues.

The ICC's New gTLD objection webpage includes links to model objection/response forms, procedural rules and other documentation. Also, the ICANN objection webinar can be consulted for additional details. As always, if any conflicts arise between the ICC Rules and the ICANN Dispute Resolution Procedure, the ICANN Procedure controls. (See, e.g., AGB, Attachment to Module 3, p. P-3.)

Aside from the "Quick Look" filter for determining standing, there are two primary areas where the LPI mechanism varies considerably from other types of objections. The first is with respect to the size of the arbitration panel. While objections will typically utilize just one panelist (and in some cases offer the participants an option to move to three if they so choose) the LPI objection will employ a three-member expert panel by default. AGB p. 3-16.

The second area of variance involves costs. Over and above any amounts spent on hiring counsel to help with preparing or responding to the objection, the LPI fees will involve: (i) filing fees; (ii) expert fees; (ii) expert expenses; and (iii) administrative expenses of the ICC. See ICC Appendix III, Schedule Of Expertise Costs For Proceedings Under The New gTLD Dispute Resolution Procedure ("Appendix III"). Flushing these out, certain costs are predictable while others are more open-ended.

The non-refundable ICC filing fee is set at a flat-rate of 5,000 Euros, and its administrative expenses can be expected to cap out at a maximum of 12,000 or 17,000 Euros (for single-member and three-member panels, respectively) "unless required otherwise by exceptional circumstances." See Appendix III, Art. 2. Expert fees, on the other hand, are billed simply at an hourly rate of 450 Euros, while expert expenses are allowed if deemed "reasonable." See Appendix III, Art. 3. However, as with string confusion and other objections, the ICC panels do have freedom to consolidate objections where appropriate, such as where multiple objections are filed against an application on the same ground. AGB p. 3-15.

The LPI Bar Is Set High

While each of the four objection types presents its own unique challenges, LPI will most certainly be among the most difficult to satisfy.

LPI Is Limited in Scope: First, bear in mind that LPI is by definition a "limited" objection. When factoring in all of the various constraints included in the standard, such as the QL, this label was clearly not assigned by accident.

Only the String or Its Stated Use Is Considered: ICANN Panels are instructed to consider "whether the applied-for string is contrary to general principles of international law for morality and public order." AGB § 3.5.3. If necessary, a panel may also take into account "the intended purpose of the TLD as stated in the application” (emphasis added). See AGB p. 3-22. If, for example, an applicant for .STRING states in its application that the TLD is to be used to provide domain-name registrations to "parties interested in cords, threads and yarn," then neither the text of the applied-for string nor its stated use would likely be against "morality or public order." Statements by someone else other than the applicant that do not appear in the application concerning the string or its potential use do not factor into the LPI standard. See AGB p. 3-21. Any LPI objection should, therefore, identify exactly what is being objected to ‒ the string, its proposed use or both ‒ and contain very specific, detailed references about where allegedly problematic statements can be found in the application.

The String or Its Proposed Use Must Be "Contrary to" Morality/Public Order: In a similar vein, an objector should also make clear exactly how the string or its stated use is "contrary to" morality and public order. AGB p. 3-20. Any would-be objector should avoid the temptation to treat "contrary to" as merely "encompassing" morality and public order. Panels will no doubt be very concerned about allowing the LPI to morph into a 'kitchen sink' objection, a prospect that ICANN very clearly wanted to avoid.

Helping To Define "Morality" And "Public Order": So how does one get a handle on spongy concepts such as "morality" and "public order" in a way that meets global expectations? This is no easy task, and one that will most certainly require erring on the side of caution more often than not. As noted by ICANN in its Draft Explanatory Discussion Memorandum of October 2008 (available here in pdf) (the "Draft Discussion Memo" or simply the "Memo"): "[e]xtensive research has shown that it is difficult to identify existing generally accepted legal norms relating to morality and public order." This difficulty is exacerbated by the inclusion of a nebulous 'catch-all' provision in the standard, stating that an applied-for string is against morality and public order where it "would be contrary to specific principles of international law as reflected in relevant international instruments of law." AGB p. 3-22. Still, at least some rough parameters can be identified if you know where to look. Here are a few possible approaches (though certainly not the only ones):

(i) Consider the Literal Definitions: To start, consider what the words themselves would be commonly taken to mean. A dictionary definition for "morality" might read as "conformity to the rules of right conduct" See, e.g., http://dictionary.reference.com/browse/morality, while "public order" could be "a condition characterized by the absence of widespread criminal and political violence, such as kidnapping, murder, riots, arson, and intimidation against targeted groups or individuals" (see, e.g. http://bit.ly/VlVtn8 or, put simply, a lack of disorder in public places or in public discussion).

(ii) Factor in the Serious Subject Matter of LPI Standard: Even a cursory reading of the list of international treaties and agreements cited by ICANN shows that genuinely unpleasant topics were contemplated when creating the objection: genocide, torture, slavery, violence against women, racism, child pornography and sexual abuse, etc. See AGB pp. 3-20 to 3-22.

(iii) Take Guidance from Other Sources: The Draft Discussion Memo includes a number of references to principles of international law, free speech and intellectual property, and each of these areas can be leveraged for valuable insight. First, with respect to international law, ICANN notes that there are certain "peremptory norms of public international law from which no derogation is permitted and which can be modified only by a subsequent norm of international law having the same character (jus cogens), such as the prohibition of the use of force, the law of genocide, the principle of racial non-discrimination, crimes against humanity and the rules prohibiting piracy and trade in slaves." (Italics in original.) Also, under the "Siracusa Principles," which help identify what may or may not be limited or excluded by member nations in implementing the International Covenant on Civil and Political Rights (one of the instruments listed in the Guidebook for "general principles" of international law), "public order" is defined as "the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded” (emphasis added). See, e.g., http://bit.ly/YCuoSW So-called "public order crimes" can be described as offenses which involve "acts that interfere with the operations of society and the ability of people to function efficiently." See, e.g., http://en.wikipedia.org/wiki/Public-order_crime. Such crimes can also appear in specially-designated "public order" laws — also known as "Riot Acts" — that were traditionally enacted (even if not always used) to prohibit violence or lawlessness in public gatherings. (See, e.g., UK Public Order Act of 1986 http://bit.ly/rNCCPo)

With respect to intellectual property, concepts such as morality" and "public order" have been found — most notably in the area of patents — for many years. For example, a number of IP treaties allow for the exemption of certain types of inventions from patent protection when they are considered to be against morality and public order. See, e.g., Article 27.2 of the WTO's "Trade-Related Aspects of Intellectual Property Rights" ("TRIPS") Agreement, available at: http://bit.ly/bu3F4o While doctrines such as "moral utility" (i.e. "immoral" inventions not considered "useful" for purposes of patentability) are far less common today, most inventors would still have a tough time trying to patent things like a novel means for fitting an atomic warhead into an airline carry-on bag, or for cultivating a new and deadly antibiotic-resistant disease.

Finally, while they can often be every bit as troublesome to isolate, free speech principles do carry some widely-accepted norms that can be adopted for purposes of LPI analysis, such as prohibitions on inciting violent or lawless behavior (yelling "Fire!" in a crowded theatre); disseminating hate speech or racial slurs; and similar things. Indeed, the Guidebook even includes a specific reference to free speech and its outer boundaries, noting that "everyone has the right to freedom of expression, but the exercise of this right carries with it special duties and responsibilities" (see AGB p. 3-21), and the International Covenant on Civil and Political Rights ("CCPR") is designated as a "useful point of reference" for LPI panels due to its concise treatment of same (Memo p. 4).

(iv) Consider the Potential Panelists: While panels will be given a certain level of discretion and leeway (see Draft Discussion Memo p. 6) in deciding what is or is not covered by the LPI standard, it is expected that only "eminent jurists of international reputation" will be appointed. AGB p. 3-16. These individuals will no doubt be extremely discerning and ever-conscious of how slippery the slope may become if "morality and public order" are applied in overly broad manner. On the other hand, even though narrow constructions may cause displeasure in certain circles, this may be seen as unavoidable to some degree and can certainly make things much easier to administer.

(v) More Than Just Simply 'Illegal': The Guidebook also includes the following specific caveat: "National laws not based on principles of international law are not a valid ground for a Limited Public Interest objection" (emphasis added). AGB p. 3-21. Similar limitations can be found in a number of international IP law agreements (see, e.g., TRIPS 27(2), which only allows carve-outs for morality and public order if "not made merely because the exploitation is prohibited by [that country's] law"; see also Articles 53(a) of the European Patent Convention and 6quinquies of the Paris Convention for the Protection of Industrial Property). Each were likely inspired by the extreme difficulty in maintaining consistency in international law, where 'safety valve' type exceptions for public order/public policy have routinely given countries freedom to simply disregard the application of certain rules when it would run counter to one or more of their own internal laws. Given the inclusion of this specific local-law limitation included by ICANN in the Guidebook, coupled with the numerous references to "international" norms peppered throughout, it seems at least safe to assume that only such things that are widely (even if not universally) accepted as being "contrary to morality and public order" (genocide, torture, rape, child pornography, etc.) would qualify, and in any event need to at least involve more than simply 'against Law X from Country Y.'

Next Article: For my third installment, we will be taking a look at community-based objections, taking into account the challenges of defining the community being represented, proving substantial opposition and material detriment.

More to come.

By Don Moody, Domain Name & IP attorney in Los Angeles, co-founder of New gTLD Disputes. To learn more, visit New gTLD Disputes.

Related topics: Domain Names, ICANN, Law, Policy & Regulation, Top-Level Domains

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