Amazon successfully defends community objection against application for ‘.amazon’
In Professor Pellet, Independent Objector (France) v Amazon EU SÁRL (Luxembourg), Amazon has successfully defended a community-based challenge by an independent objector to its application for the new generic top-level domain (gTLD) name '.amazon' (and the Japanese and Chinese equivalents). In the expert determination issued on January 27 2014, Professor Luca G Radicati di Brozolo found that the objector had failed to show any “substantial opposition” by the Amazon community to the application or that the latter would suffer “material detriment” if the application succeeded.
The office of the independent objector is a mechanism in the new gTLD application process whereby a single independent objector, in a kind of amicus brief role, may object to an application in the public interest where no other objection has been filed, in particular, in circumstances such as this case, where there is no institution willing or able to object on behalf of a specific community.
For a community objection to be sustained, there must be substantial opposition from a significant portion of the community which is targeted by the string. It must be proved that:
- the community can be clearly defined;
- there is substantial community opposition;
- there is a strong association between the relevant community and the string; and
- there is a likelihood that the rights or legitimate interests of a significant portion of the relevant community will suffer material detriment.
The expert in this case found that there was no need to determine whether the community could be clearly defined in light of his conclusions on the other three tests.
With regard to the association between the community and the '.amazon' string, the main thrust of the objection was that there is a strong association between the Amazon region and its community and the '.amazon' string in the mind of the average internet user. Amazon argued that this ignores the “strong brand recognition” attaching to its AMAZON trademark. Simply because a string, which is also a brand name, happens to relate to some geographic area, does not mean that the string is targeting that area. Amazon argued that its proposed use of the '.amazon' string is a legitimate and unrelated use of its well-known trademark and company name.
The expert acknowledged the recognition attaching to the Amazon brand but said that this was “beside the point”. For him, the real question was whether there are equally strong links between the '.amazon' string and other communities. His conclusion was that the string coincides with the name of the Amazon River and creates a “strong association” with the community in the Amazon basin.
As to the issue of whether there was a substantial opposition to the application, the objector relied upon the early warnings issued by the Brazilian and Peruvian members of ICANN’s Governmental Advisory Committee and endorsed by Bolivia, Ecuador and Guyana to show substantial opposition. Amazon argued that none of the potential opponents to the application actually filed an objection. The expert found that the failure of governments, environmental groups or representatives of the indigenous populations to make an objection could not be ignored and a showing of substantial opposition had not been made out.
With regard to whether the application created a likelihood of material detriment to a significant portion of the Amazon community, the objector argued that the grant of exclusive rights to the '.amazon' string would prevent its use for public interest purposes relating to the Amazon region which would cause material harm to the region and to the public who use the internet. Amazon argued that there was no detriment because no-one else had applied for the '.amazon' string.
The expert concluded that the failure of the Amazon community, or of anybody sharing its interests, to apply for the '.amazon' string was indicative that its use in the future was not essential to the interests of the Amazon basin community.
A substantive procedural issue concerning conflict of interest arose prior to determination on the merits. The expert found that links between the objector and two members of the Amazon community led to “justifiable doubts as to his independence” and that, in the interests of “ensuring the perception of neutrality, independence and impartiality of the office of independent objector and of the entire gTLD dispute resolution process”, the applicant’s challenge to the independence of the independent objector must be upheld.
In circumstances of conflict of interest such as this one, and in the interests of maintaining the integrity of the process, it could be assumed that the objection would then be rejected without further ado. However, in the absence of provision in the rules, the expert took the pragmatic approach of proceeding regardless, which resulted in a rejection on the merits. It is easy to imagine that, had the decision gone the other way, real questions would have been raised about the fairness and integrity of the process.
Considering the 'one-off' nature of the objection procedure and in the interests of equity, it seems reasonable that, where a conflict of this nature is found to exist in the future, an independent arbiter (perhaps even the ICANN ombudsman) should be appointed to assess whether there are good-faith grounds on which a subsequent objection should be made. Of course this involves much more than a creative “filling in of the gaps” exercise by an expert and would require a modification of the objection procedures.
Alistair Payne and Colm Maguire, Matheson, Dublin
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