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Thinking Carefully About New gTLD Objections: Community (3 of 4)

Don Moody

My third installment regarding gTLD objections — and understanding exactly what's required for an objector to prevail — moves to the more complex community-based objections. For those getting their first exposure to this unwieldy beast, pull up a chair and get comfortable. The community objection involves multifaceted elements, each having its own set of defining factors and often using similar terminology in different contexts. As such, it can be very confusing and one can easily lose track of the bigger picture.

Consider first the "ultimate goal" of the community objection as stated by ICANN: "to prevent the misappropriation of a community label by delegation of a TLD and to ensure that an objector cannot keep an applicant with a legitimate interest in the TLD from succeeding." See http://icannwiki.com/index.php/Community_TLD. This two-part objective reveals itself in various aspects of the objection standard, as detailed more fully below.

Stringent Standing Requirements

As always, we start with standing. A would-be community objector has a number of hurdles to overcome. Specifically, a party must show that it is an "[e]stablished institution associated with a clearly delineated community." AGB § 3.2.2. Thus, an entity "established solely in conjunction with the gTLD process" cannot act on behalf of any purported "community" solely to benefit its own application status. See AGB p. 3-8. Otherwise, an applicant for .STRING could just form an entity entitled "String, LLC" and then engage in a self-serving attempt to co-opt the "string community" as a vehicle for objecting to other applicants for .STRING, thereby gaining a tactical advantage.

Who meets this standard? Well first, as with LPI objections, the Independent Objector (IO) automatically has standing to bring a community objection. AGB p. 3-10. Any would-be objector who is not the IO must demonstrate that it is an "established institution," meaning that it has been around for a certain length of time, has cultivated a sufficient level of public recognition in the process, and can provide some verifiable evidence of all this. AGB p. 3-8.

Note that the standard specifically refers to "institution," indicating that the objector must be other than a single individual. The particular choice of the term "institution" — as opposed to "entity" or similarly nondescript label — also may indicate a preference for groups engaged in certain types of public activities. See, e.g., http://dictionary.reference.com/browse/institution: "[a]n organization, establishment, foundation, society, or the like, devoted to the promotion of a particular cause or program, especially one of a public, educational, or charitable character."

As to duration, the Guidebook does not specify how long an objector must have existed, but given the use of the precursor term "established" (i.e. "engrained" or "deep-rooted" in people's minds) and the restriction against entities that are "established solely in conjunction with the gTLD process" (which has gone on in some form since at least October 2008), an entity with a five-year period of existence could seemingly qualify as "established" (though each situation will of course be examined on its own merits). Expect heightened scrutiny, however, if the objector is either a New gTLD applicant itself or closely affiliated with one.

Apart from being an "established institution," an objector also needs to prove an "association" with the community at issue. The association must amount to an "ongoing relationship," as reflected by evidence of an objector's regular participation or leadership in community activities; an "institutional purpose" related to the benefit of the community; and the degree to which formal boundaries can be placed around the community. AGB p. 3-8.

One need not satisfy each and every aspect of the "established institution" and "ongoing relationship" factors listed above to have standing. However, an objector can certainly help itself by providing as much detail as possible on its background and any ties to the community that it claims to represent. Id.

Logistics And Cost-Planning

Along with LPI objections, the International Centre for Expertise of the International Chamber of Commerce ("ICC") also administers Community Objections. As discussed in my previous article, the ICC applies its "Rules of Expertise" and has created a "Practice Note" for gTLD-related procedures, with costs based at least in part on an hourly-rate model plus filing fees. However, unlike LPI objections, only one panelist is allowed for community objections (even if the parties agree and would prefer a three-member panel). See AGB p. 3-16.

Establishing Elements Necessary for Objection

While questions regarding standing examine the relationship between the community and the objector, the standards for the objection look at the relationship between the community and the applied-for string. The objector must prove four distinct elements in order to succeed: (i) the existence of a clearly defined community; (ii) substantial opposition by a significant portion of that community; (iii) a strong association between the community and the applied-for string; and (iv) material detriment. AGB p. 3-25.

1. "Clearly Delineated"

As to the first factor, the objector must prove that the community expressing opposition is "clearly delineated." AGB p. 3-22. While panelists have some discretion in deciding exactly how "clear" the parameters of the community need to be, ICANN does provide guidance on what aspects may be considered (with many closely resembling the criteria for "established institution").

A clearly delineated community should possess a degree of public recognition, and have some formally identifiable boundaries. AGB p. 3-22. Factors include the community's "global distribution," or lack thereof, the length of time the community has existed and the number of people or entities who comprise it. AGB p. 3-23. The IO sums up the standard as follows:

"For the IO, a community is a group of individuals who have something in common (which can include their place of residence — i.e. the French, South-East Asian or Brazilian community — or a common characteristic — i.e. the disability community), or share common values, interests or goals (i.e. the health, legal, internet or ICANN community). For the purpose of the IO evaluation, it is clear that what matters is that the community invoked can be clearly delineated, enjoys a certain level of public recognition and encompasses a certain number of people and/or entities."

See http://bit.ly/VJQNaJ. Would-be objectors or respondents may find the IO comments helpful when determining how to frame their respective analyses and arguments.

2. Substantial Opposition by a Significant Portion of the Community

Next, a "significant portion" of the community must "substantially oppose" the application. AGB § 3.5.4. Some, but not "substantial," opposition will not suffice. AGB p. 3-23. So, what counts as "substantial opposition?" And what (or who) makes up a "significant portion" of the community? ICANN does provide some general guidance, at least regarding the latter element.

A "significant portion" of a community may depend upon the context. Numbers can (and often do) deceive, so what may appear as a seemingly large grouping might prove relatively small on a percentage basis if compared to a much bigger overall population. Thus, for example, an organization of "fans" of a popular sport or widely-known entertainer likely may represent only a small portion of the "community" surrounding that sport or entertainer, and a dispute resolution panelist may well question the extent to which that organization truly represents that community and its various views and interests.

Further, the question of "who" raises the objection is just as important as "how many" do. See AGB p. 3-23. If only a few individuals speak out against a string .PHYSICS, but one of them is Prof. Stephen Hawking, an ICANN panel would likely take that into consideration. Id. However, ICANN also has included counterbalances to offset the potential for an objector to rely on simple strategic 'name-dropping' to create the appearance of substantial opposition. It examines diversity and distribution among sources of support and opposition, breaking matters into "regions" and "subsectors," and also factoring in community "leadership" and "historical defense of community in other contexts." Id.

Again, the measuring criteria are relative: if every noted American physics authority favors granting .PHYSICS to one particular applicant, but those in other parts of the world do not, a panel could take this into account when determining whether a "significant portion" of the community (as opposed to simply one possible community) really opposes the string. On the other hand, if the applied-for string were specifically territorial in nature (e.g. .PHYSICSUSA) the analysis surely would differ. Id.

ICANN offers no specific guidance on when opposition becomes "substantial." However, recall the goal of the community objection process "to ensure that an objector cannot keep an applicant with a legitimate interest in the TLD from succeeding." In that light, it seems reasonable to expect an objection to have ample evidence of opposition at the leadership level and among a wide base of the community, and to present cogent reasons why, rather than merely express displeasure over, a particular applicant should not be awarded the objected-to string.

3. Strong Association/Targeting

An objector also must show a strong association between the community and the applied-for string. As always, language matters; only a "strong," and not just any, association will suffice. See AGB p. 3-23. Also, the "association" differs from that used to determine standing; the latter evaluates an objector's ties to and involvement with a particular community, while the objection considers the extent to which a TLD applicant focuses upon (i.e. targets) a specific community, whether explicitly or implicitly. The "targeting" can be either voluntary (e.g. via statements in the application or other contexts) or inferred based on the public's perception of the string and who or what it would most likely be associated with. AGB p. 3-23, 3-24.

By way of example, an applicant for the string .YORK could be seen as explicitly targeting the "York Community" — which could include, among others, citizens of York, England, residents of York, Pennsylvania, or students and alumni of York University in Canada — simply by applying for a string which includes the term "York" in its entirety. This calls to mind the "nexus" scoring system for community TLD applications, which awards points toward community status if the proposed string "matches the name of the community or is a well-known short form or abbreviation of the community," and if the string "has no other significant meaning beyond identifying the community described in the application." AGB p. 4-12. If a string is identical to the name of a community (or a commonly-used abbreviation thereof, such as "YORKU" for York Univ.), and if that name has but a limited number of reasonable meanings, then the public likely would make a strong association between that string and the community. Similarly, if the applicant affirmatively states in its application that it intends to benefit a particular community — e.g. "This string will be used to serve the needs of York city residents" — that would serve as evidence of explicit targeting.

On the other hand, a .YORK applicant also could be seen as implicitly targeting a particular "community" if the string may otherwise identify the community but there is not pure identity between the community and its common name, or other evidence that would rise to the level of explicit targeting. But, an objection that relies solely upon implicit targeting would likely need to offset this potential for variance in meaning, etc. by providing stronger evidence on the elements of substantial opposition and material detriment.

4. Material Detriment

"Material detriment" is perhaps the most important and challenging of the required elements to satisfy. A community objector must demonstrate 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." No matter the showing on the other elements, if granting the application will not cause any real, cognizable harm, the objection becomes immaterial and will be rejected. ICANN's "V4 Comment Analysis” emphasizes the point:

"ICANN does not consider that the satisfaction of other elements of the community objection (community, substantial opposition and targeting, as set out in § 3.4.4) should create a presumption of detriment. The likelihood of detriment is an independent element of the objection that must be proven by the objector. If the objector cannot prove the likelihood of detriment, there does not appear to be any reason why the objector should be entitled to block the applicant's application."

Take particular note of the explicit rejection of any "presumption" of detriment even if all three of the other factors are deemed to have been satisfied. This, coupled with the strong association/targeting requirement referenced above, serves as a very clear indication that the ICANN drafters fully expected that some identifiable "community" could conceivably exist for just about any applied-for string (especially those involving generic or highly descriptive words), with each having their own unique reasons to object on community grounds. Some of these "communities" might be co-opted surreptitiously by other applicants as a weapon against their competitors, or perhaps even by opportunists who want nothing more than to extract nuisance settlements from program participants.

The material detriment requirement also guards against the potential for entrenched interests to attempt to leverage pre-existing commercial advantages and resources in order to take over one or more generic or descriptive TLDs that may pertain to their market sector simply by virtue of their dominant status. An objection that says nothing more than, "we have always been the 'big fish' in the [e.g. yarn and thread] business and therefore should be awarded [e.g. .STRING] and other applications should be rejected based on our position as market leader," etc., will most assuredly fall on deaf ears. Panelists will no doubt acutely appreciate the significant air of 'disruptiveness' about the New gTLD Program, providing an opportunity for new players to enter the domain marketplace with innovative marketing and business approaches, which benefit not only the respective industries involved but Internet users as a whole.

To reiterate (as this principle cannot be stressed enough): the mere fact that a community exists and opposes a particular application is not enough to succeed in bringing a community objection. Some potential for material detriment must also exist. But what exactly counts as "material detriment" for purposes of the standard?

a. Forms of Harm

The types of harm that a community may cite in support of material detriment include "economic," "concrete," "reputation[al]" and "interference with core activities." AGB p. 3-24. While ICANN does not elaborate further, these types of harm must be apparent on an objective basis; the subjective displeasure of an objector will not suffice. Id.

b. Severity and Likelihood of Harm

The material detriment standard employs a method of structured risk analysis in that it looks at both the severity of the potential harm and how likely such harm is to occur.

As to severity, the standard includes specific references to the "nature and extent of the damage" to a purported community (in whatever form). "Damage" is another weighty term, meaning "injury" or "loss," and ICANN could have chosen verbiage with less severe connotations — e.g. "impact" or "effect." That it did not, and instead chose to require "concrete" damage and "material" detriment, suggests that ICANN intended to impose a relatively high threshold for the concept of "detriment."

For example, if one or more individuals in a particular community think that awarding a string to a commercial applicant is akin to a "sell-out" or compromise of community principles, should this fact alone obstruct the entire process of awarding a TLD to an otherwise reputable applicant (and one who may have invested considerable time and resources in not only crafting the application but in setting up strategic relationships to promote and effectively manage the domain)? The "material detriment" standard would suggest not, or at minimum would seem to require balancing the severity and likelihood of harm to the putative community against that faced by the applicant if the objection succeeds.

Similarly, panels also are instructed to examine the "level of certainty" that the alleged harm will, in fact, actually happen. AGB p. 3-24. Or, put another way, if an objector can only identify a narrow type of injury — even one with potentially severe consequences — that is largely just hypothetical in nature and involves bizarre circumstances that are unlikely ever to be encountered, this should not serve to obstruct an otherwise-worthy TLD application.

c. The Community's "Rights or Legitimate Interests"

Someone considering this facet of the "material detriment" test might initially choose simply to look to Paragraph 4 of the UDRP and insert "bad-faith" trademark-related arguments as a means of satisfying this element. However, given that both the string confusion and legal rights objections utilize a similar concept in the Guidebook, such an approach would seem misplaced. Instead, ICANN panels should look carefully at what rights or interests truly are "shared by a significant portion" of the community, and the adequacy with which the objector could represent such interests. This should be balanced against the extent to which the applicant can represent those (as well as perhaps more) rights and interests, and whether and to what extent the objector and the community it purports to represent would be harmed by the application being granted.

d. The Degree the Community Depends upon the DNS for Its "Core Activities"

"Material detriment" also takes into account the extent to which a community depends upon the DNS for its core activities. AGB p. 3-24. ICANN panels will no doubt watch carefully for overly-simplistic and pedestrian approaches to this element, particularly those that argue little more than "since much of the world depends upon the Internet for commerce, communication, etc., and since the Internet depends on the DNS, the objector must therefore depend on the DNS." The operative term is dependent, meaning one needs it in order to function. If a community has other means of representing itself and conducting business that do not specifically involve the domain name system (i.e. the "DNS"), whether they be offline (e.g. through traditional advertising media such as television, radio or print) or online (e.g. via social networking platforms), then the degree to which they are "dependent on the DNS" becomes far less clear. By the same token, given that any potential community could theoretically cite its ability to communicate with the world via the Internet as being a "core" activity (i.e. whether for promotion, e-commerce, membership, recruitment, etc.), and taking into account that the use of an overly-inclusive definition of "core" would render the limitation otherwise meaningless, panels are likely to scrutinize the cited activities and compare their relationship to the overarching business or operational model of the objector.

e. Applicant's Contrary Intent and Proposed Security Measures

The standard also looks at the existence of evidence of intent not to act in the best interests of a community or of users more widely. ICANN cites an example where an applicant has not proposed "effective security protections for users' interests" in its TLD application. While a number of applicants have, in fact, done so — e.g. intellectual property and cyberfraud abuse mitigation systems, so-called "protected marks lists," etc. — if an applicant for .STRING came out in a press release and specifically stated that "the commercial interests of thread and yarn manufacturers are of no importance to us and will, in fact, be completely disregarded," such a statement would obviously shed light on how the applicant intends to act if awarded the TLD.

Next Article

My fourth and final installment will cover the Legal Rights Objection ("LRO") which, as many readers are already aware, is one of the primary vehicles for trademark and other rights holders to use when protecting against infringement. Until next time.

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, Web

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Comments

Very good exposition. And a worthy Carlton Samuels  –  Feb 21, 2013 9:02 AM PDT

Very good exposition.  And a worthy addition to the document set of the At-Large Review Group.

Carlton Samuels
Member, At-Large new GTLD Review Working Group

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