a. The Board, acting through the NGPC, acted in a manner inconsistent with its Articles, Bylaws and Applicant Guidebook because, as more fully explained below, by giving complete deference to the consensus advice of the Government Advisory Committee ("GAC") regarding whether there was a well-founded public policy reason for its advice, the NGPC failed in its duty to independently evaluate and determine whether valid and merits-based public policy interests existed supporting the GAC's consensus advice. In sum, we conclude that the NGPC failed to exercise the requisite degree of independent judgment in making its decision as required by Article IV, Section 3.4(iii) of its Bylaws. (See also ICANN, Supplementary Procedures, Rule 8(iii) [hereafter "Supplementary Procedures"].)
b. The effect of the foregoing was to impermissibly convert the strong presumption to be accorded GAC consensus advice under the Applicant Guidebook into a conclusive presumption that there was a well-founded public policy interest animating the GAC advice.
c. While the GAC was not required to give a reason or rationale for its consensus advice, the Board, through the NPGC, was. In this regard, the Board, acting through the NGPC, failed in its duty to explain and give adequate reasons for its decision, beyond merely citing to its reliance on the GAC advice and the presumption, albeit a strong presumption, that it was based on valid and legitimate public policy concerns. An explanation of the NGPC's reasons for denying the applications was particularly important in this matter, given the absence of any rationale or reasons provided by the GAC for its advice and the fact that the record before the NGPC failed to substantially support the existence of a well-founded and merits-based public policy reason for denying Amazon's applications.
d. Notwithstanding the strong presumption, there must be a well-founded public policy interest supporting the decision of the NPGC denying an application based on GAC advice, and such public policy interest must be discernable from the record before the NGPC. We are unable to discern a well-founded public policy reason for the NGPC's decision based upon the documents cited by the NGPC in its resolution denying the applications or in the minutes of the May 2014 meeting at which it decided that the applications should not be allowed to proceed.
e. In addition, the failure of the GAC to give Amazon, as a materially affected party, an opportunity to submit a written statement of its position to the GAC, despite Amazon's request to the GAC Chair, violated the basic procedural fairness requirements for a constituent body of ICANN. (See ICANN, Bylaws, art. III, § 1 (July 30, 2014) [hereinafter Bylaws].) In its decision denying the applications, the NGPC did not consider the potential impact of the failure of the GAC to provide for minimal procedural fairness or its impact on the presumption that would otherwise flow from consensus advice.
f. In denying Amazon's applications, the NGPC did not violate the Bylaws' prohibition against disparate treatment.
g. Amazon's objections to changes made to the Applicant Guidebook are untimely.
(1) It would prevent the use of this domain for purposes of public interest related to the protection, promotion and awareness raising an issue related to the Amazon biome. It would also hinder the possibility of use of this domain name to congregate web pages related to the population inhabiting that geographical region;
(2) The string "matched" part of the name, in English, of the "Amazon Cooperation Treaty Organization," an international organization formed under the Amazon Cooperation Treaty signed in 1978; and
(3) The string had not received support from governments of countries where the geographic Amazon region is located.1
The principle of protection of geographic names that refer to regions that encompass peoples, communities, historic heritages and traditional social networks whose public interest could be affected by the assignment, to private entities, of gTLDs that directly refer to those spaces, is hereby registered with reference to the denomination in English of the Amazon region, but should not be limited to it.
(Id., at 3.) Brazil went on to state that its concerns about the.amazon string extended to the English word "amazon" in "other languages, including Amazon's IDN [internationalized domain name] applications" using Chinese and Japanese characters. (Id.)
[T]he Amazon Community's inability to use the Strings [.amazon and the two IDNs] is not an indication of detriment, and even less of material detriment. The Objection Procedures are clear in specifying that "[a]n allegation of detriment that consists only of the applicant being delegated the string instead of the objector will not be sufficient for a filing of material detriment" (Section 3.5.4).
(Id., at 23 (Emphasis in the original).)
as a brand, trademark and domain name for nearly two decades also in the States [including Brazil and Peru] arguably forming part of the Amazon Community.... There is no evidence, or even allegation, that this has caused any harm to the Amazon Community's interests, or has led to a loss of reputation linked to the name of the region or community or to any other form of damage.
... [I]t is unlikely that the loss of the '.com' after 'Amazon' will change matters.
(Id., at 23).
More generally, there is no evidence either that internet users will be incapable of appreciating the difference between the Amazon group and its activities and the Amazon River and the Amazon Community, or that Amazonia and it specificities and importance for the world will be removed from the public consciousness, with the dire consequences emphasized by the IO. Were a dedicated gTLD considered essential for the interests of the Amazon Community, other equally evocative strings would presumably be available. ".Amazonia" springs to mind.
(Id., at 23.)
As evidence of substantial opposition to the Applications the IO relies essentially on the position expressed by the Governments of Brazil and Peru in the Early Warning Procedure. The two Governments undoubtedly have significant stature and weight within the Amazon Community. However, as noted by the Applicant, beyond their expressions of opposition in the Early Warning Procedure, the two Governments did not voice disapproval of the initiative in other forms. As a matter of fact, they engaged in discussions with the Applicant.
This is not without significance. Indeed, had the two Governments seriously intended to oppose the Application, they would presumably have done so directly. There is no reason to believe that they could have been deterred from doing so by the fear of negative consequences or by the costs of filing an objection. The Applicant is persuasive in arguing that the Brazilian and Peruvian Governments' attitude is an indication of their belief that their interests can be protected even if the Objection does not succeed. Indeed, in assessing the substantial nature of the opposition to an objection regard must be had not only to the weight and authority of those expressing it, but also to the forcefulness of their opposition.
(Id.) These considerations led Dr. Radicati to find that the IO has failed to make a showing of substantial opposition to the Applications within the purported Amazon Community. (See id.)
(1) "[L]egal grounds" found in the ICANN's Bylaws, in prior GAC advice and in the Guidebook, (Id., at 14.);4
(2) The string is a geographic name listed in the Guidebook and therefore requiring governmental consent (Id., at 14-15.);5 and
(3) The national and local governments of the countries through which the Amazon River flows "have expressed, in writing, their rejection to dot amazon." (Id., at 14-15, 24.).6
So I am now asking you in the [GAC] committee whether there are any objections to a GAC consensus objection to the applications for dot Amazon, which would include their IDN equivalents? I see none.... So it is decided.
(Id., at 30.)
The GAC Advises the ICANN Board that:
i. The GAC has reached consensus [that the following application should not proceed] on GAC Objection Advice according to Module 3.1 part I of the Applicant Guidebook on the following applications:
1. The application for.amazon (application number 1-1315-58056) and related IDNs in Japanese (application number 1-1318-83995) and Chinese (application number 1-1318-5591).
(Ex. R-22, at 3-4 (footnote omitted).)
Beyond the law of geographical indications [which do not support Brazil and Peru's legal claims], the assignment of '.amazon' to Amazon would not in any event be prejudicial to the objecting states [Brazil and Peru] who, since they have no reason for linguistic reasons to reserve '.amazon', could always if they so wished reserve a new gTLD such as '.amazonia' or '.amazonas' which would create no risk of confusion with '.amazon'.
(Id., at 10; see also Ex. C-47, at 23.)
The action being approved today is to accept the GAC's advice to the ICANN Board contained in the GAC's Durban Communiqué stating that it is the consensus of the GAC that the applications... should not proceed. The New gTLD Applicant Guidebook (AGB) provides that if "GAC advises ICANN that it is the consensus of the GAC that a particular application should not proceed, this will create a strong presumption for the ICANN Board that the application should not be approved." (AGB, § 3.1). To implement this advice, the NGPC is directing the ICANN President and CEO... that the applications... should not proceed.
(Id., at 7.)
(1) The Early Warning Notice submitted by Brazil and Peru that state as reasons for their concern, namely:
(a) The granting of the string to Amazon would deprive the string for use by some future party for purposes of protecting the Amazon biome and/or its use related to the populations inhabiting the Amazon region; and
(b) Part of the string matches the name in English of the Amazon Cooperation Treaty Organization. (Id., at 10.)13
(2) Curiously, the NGPC considered correspondence reflecting that Amazon sought to amicably resolve Brazil and Peru's objections. We assume that Amazon's effort to informally resolve concerns of Brazil and Peru was not a factor that supported the NGPC's decision denying Amazon's applications. (Id., at 10-11.)14
(3) The resolution correctly noted that, as it stood in the position of the ICANN Board, under the Guidebook the NGPC was called upon to "individually consider an application for a new gTLD to determine whether approval would be in the best interests of the Internet community." (Id., at 11.)15
(4) The resolution goes on to list eighteen documents, including, for example, the Early Warning Notice, that the NGPC reviewed before deciding to reject Amazon's applications. (Id., at 11-13.) Aside from referring to the Early Warning Notice, there is no discussion in the resolution how any of these other documents impacted the NGPC's decision.
The IRP Panel must apply a defined standard of review to the IRP request, focusing on: a. did the Board act without conflict of interest in taking its decision?; b. did the ICANN Board exercise due diligence and care in having sufficient facts in front of them?; and c. Did the ICANN Board members exercise independent judgment in taking the decision, believed to be in the best interest of the company [i.e., the internet community as a whole]?
(See Bylaws, Art. IV, § 3(4).) Here, only compliance with requirements (ii) and (iii) in issue.
In performing its mission, the following core values should guide the decisions and actions of ICANN:
3. To the extent feasible and appropriate, delegating coordination functions to or recognizing the policy role of other responsible entities that reflect the interest of affected parties.
4. Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making....
6. Introducing and promoting competition in the registration of domain names where practicable and beneficial in the public interest.
8. Making decisions by applying documented policies neutrally and objectively, with integrity and fairness....
10. Remaining accountable to the Internet community through mechanisms that enhance ICANN's effectiveness [such as the process of independent review].
11. While remaining rooted in the private sector, recognizing that governments... are responsible for public policy and duly taking into account governments'... recommendations.
... Any ICANN body making a recommendation or decision shall exercise its judgment to determine which core values are most relevant and how they apply to the specific circumstances of the case at hand, and to determine, if necessary, an appropriate and defensible balance among competing values.
INDEPENDENT REVIEW OF BOARD ACTIONS
The Board, or in this case, the NGPC final decision is subject to an "independent review" by this independent review panel to determine whether the Board/NGPC made its decision in a manner consistent with ICANN's articles of incorporation, applicable Bylaws and the applicant guidebook, i.e., its governance documents.
ICANN will follow in the evaluation process are described in the following paragraphs."
"The following types of applied-for strings are considered geographic names and [require]... non-objection from the relevant governments...." This is followed by a list of four specific categories, including, inter alia, cities, sub-national place names, etc.
"A Geographic Names Panel (GNP) will determine whether each applied-for gTLD string represents a geographic name.... For any application where the GNP determines that the applied-for string is not a geographic name requiring government support (as described in this module), the application will pass the Geographic Names review with no additional steps required."
The process for GAC Advice on New gTLDs is intended to address applications that are identified by governments to be problematic, e.g., that potentially violate national law or raise sensitivities [i.e., may affect public policy issues].
... The GAC [may] advise ICANN that it is the consensus of the GAC that a particular application should not proceed. This will create a strong presumption for the ICANN that the application should not be approved.
a. The GAC was required to state a reason(s) or rationale for its consensus advice, i.e., reason(s) for recommending that Amazon's applications be denied.
b. As a constituent body of ICANN, the GAC was required to adhere to the Bylaws' duties of procedural fairness under Article III, Section 1. To comply with this Bylaw, the GAC was either required to permit Amazon, as the potentially adversely affected party in interest, to appear before the GAC or, at a minimum, submit information to the GAC in writing before it issued consensus advice.
c. To warrant a strong presumption, GAC advice must be based upon a valid and legitimate public policy interest(s).
d. By failing to make an independent evaluation of whether or not there was a valid public policy rationale for the GAC advice, the NGPC abdicated its independent decision making function to the GAC, converted the strong presumption to be given to GAC consensus advice into a conclusive presumption or veto, and otherwise abandoned its obligation to make a sufficient due diligence investigation of the facts needed to support its decision and/or failed to make an independent, merits-based decision in the best overall interest of the Internet community.
e. To comply with ICANN's transparency obligations, the NGPC must give reasons for its decisions. The NGPC's resolution of May 14, 2014 is not a sufficient statement of reasons for its decision rejecting Amazon's applications in that the NGPC failed to state any public policy rationale for its decision and/or balance the interests of Amazon favoring the granting of the applications with public policy interests militating against granting same.
f. The ICANN Board, acting through the NGPC, violated its obligation not to engage in disparate treatment of the applicant under Article II, Section 3 of the Bylaws by denying its application, whereas under similar circumstances a private Brazilian corporation was granted the gTLD of.ipiranga, a string based on the name of another celebrated waterway in Brazil.20
a. There is nothing in the Articles of Incorporation, applicable Bylaws22 or Guidebook that requires the GAC to state any reason for its consensus advice.
b. The procedural fairness obligation applicable to the GAC, as a constituent body of ICANN, did not require the Board to assure that a representative of a private company be able to appear before the GAC, nor did it require the Board to allow a potentially adversely affected party to be able to submit written statements to the GAC.23
c. Although the GAC advice must be based on legitimate public policy considerations, even in the absence of a rationale for the GAC advice, there was sufficient support in the record before the NGPC for the NGPC to discern a well-founded public policy interest, and it was proper for the NGPC to consider reasons given in the Early Warning Notice as providing a public policy reason supporting the NGPC decision.
d. Given the strong presumption arising from GAC consensus advice, the NGPC appropriately decided to reject Amazon's applications.
e. The NGPC gave reasons for its decision, and the reasons given by the NGPC for denying Amazon's applications are sufficient.
f. The NGPC did not engage in disparate treatment of Amazon. The anti-disparate treatment provision contained in the Article II, Section 3 of the Bylaws should be read, not as applying to ICANN as a whole, but as a limitation on actions of the ICANN Board. As there was no objection to.ipiranga, neither the NGPC nor the Board was ever called on to decide whether.ipiranga should be granted to a private company.24 Accordingly, there could be no disparate treatment by the Board, or the NGPC acting for the Board, regarding the strings at issue in this proceeding.
g. Amazon's challenge to a 2011 change in the Applicant Guidebook relieving the GAC of any requirement to provide reasons for its advice is untimely.
a. Peru asserted that applications should be rejected because "Amazon" is a listed geographic name. ICANN, however, concedes that Peru's assertion, made at GAC's Durban meeting to rally support for GAC advice opposing Amazon's application, was erroneous. "Amazon" is not a listed geographic name. (See Ex. C-40, at 14-15, 24; Ex. C-102, ¶ 1.)
b. Brazil and Peru asserted legal rights to the name ".amazon" under international law, causing the NGPC to ask for an expert opinion on this issue. (Atallah Tr., 216:4-13.) Peru specifically claimed it had legal grounds to the name "Amazon," as it denotes a river and a region in both Brazil and Peru, (see, e.g., Ex. C-40, at 14), and it invoked the "rights of countries to intervene in claims that include words that represent a geographical location of their own," (Ex. C-95, at 2). The legal claim of Brazil and Peru is without merit. Dr. Passa's report, part of the record before the NGPC, makes plain that neither nation has a legal or sovereign right under international law, or even their own national laws, to the name. (Ex. C-48.) There appear to be no inherent governmental rights to geographic terms. (See Ex. C-34; Forrest Report, ¶ 5.2.1.)
c. Brazil and Peru asserted in their Early Warning Notice that unidentified governmental or non-governmental organizations, who in the future may be interested in using the string to protect the environment ("biome") of the Amazon region or promote the culture of the people that live in this region, will be deprived of future use of the.amazon top level domain name if the applications are granted. (Ex. C-40, at 11-12.) We discuss this assertion below.
d. Brazil and Peru also asserted that they objected to the applied-for string.amazon because it matched one of the words, in English, used by the Amazon Cooperation Treaty Organization. (See Ex. C-22, at 1.) A one word match is not likely to be misleading and is not a plausible public policy reason for an objection. (See discussion supra, at 22 n. 13.)
That the Board state reasons for its decisions; and
That the Board make independent and objective decisions on the merits.
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