2017-07-21

New gTLD .AMAZON IRP Final Declaration, What Happens Next?

ICANN Loses Another New gTLD IRPAmazon EU S.à.r.l. v. ICANN (.AMAZON) | ICANN.org:
New gTLD .AMAZON IRP Final Declaration
New gTLD .AMAZON IRP Final Declaration (pdf)
Independent Review Process Final Declaration (IRP) (pdf, 293KB) 11 July 2017, excerpt (pp. 2-3):
The [ICANN] Board, acting through the NGPC [ICANN’s New gTLD Program Committee], 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”] ... 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 ..." (emphasis added)
Costs, fees, expenses and attorney fees (p. 53):
"ICANN shall reimburse Amazon the sum of US$163,045.51, representing that portion of said fees and expenses in excess of the apportioned costs previously incurred by Amazon ... Each side will bear its own expenses and attorneys’ fees."
 So what happens next? 
"The practical effect of the Panel's ruling is that the dispute is remanded for further proceedings. In other words, Brazil, Peru, the GAC and ICANN, as well as Amazon, may now supplement and strengthen their positions. The Applicant Guidebook states that the objective for ICANN is to "determine whether approval would be in the best interest of the internet community." §5.1. Here, all the interested parties, including Brazil, Peru and the GAC, are members of that community. See Bylaws, Art. I, § 2(11). They all share a common objective and potentially a common benefit in promoting their respective interests anew in light of this Declaration."--Hon. A. Howard Matz, IRP supra, p.67 (emphasis added)

Domain Mondo's analysis and opinion:

Upon "remand" and in accordance with the "objective for ICANN" referenced by Judge Matz above, Brazil, Peru, and the GAC, may very well prevail. As I have noted before, ICANN's dot BRAND new gTLDs were a BAD idea and completely contrary to the historic principles of the internet, see RFC 1591 and News Review: ICANN's Extortionate .BRAND Scam Failing.

Trademarks as generic top-level domains, and presumptive rights of renewal (of gTLD registry agreements), are two of the worst corruptions of the global internet DNS foisted by inept ICANN and its corrupt GNSO upon the global internet community. All TLDs are global public resources, NOT property, in accordance with RFC 1591 and the U.S. government's argument in the recent Weinstein case (pdf). But greed, conflicts of interest, cronyism, and incompetence govern ICANN policy-making and implementation.
"[W]hen a decision is taken about a possible new top-level domain, ICANN's job is to work out, in a transparent and accountable manner, whether it is really in the best interest of the world as a whole, not just of those launching the new domain."--Sir Tim Berners-Lee at the Net Mundial Conference, April, 2014, in São Paulo, Brazil.

-- John Poole, Editor, Domain Mondo 

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