New gTLD .WEB Appeal by Ruby Glen (Donuts), ICANN's Answering Brief

New gTLD .WEB Litigation Ruby Glen, LLC v. ICANN:  ICANN's Answering Brief filed Oct 30, 2017, in the Ninth Circuit. The appeal was brought by Ruby Glen LLC (Donuts affiliate) from the Final Judgment (pdf) and Order (pdf) dismissing Ruby Glen's First Amended Complaint (FAC) with prejudice, entered by the U.S. District Court at Los Angeles.

Answering Brief excerpt (page 23 of 75):

ICANN's Answering Brief's Conclusion:

ICANN's Answering Brief [pdf, 393 KB] 30 October 2017, full embed below:

See also:

• Plaintiff's Opening Appellate Brief [pdf, 370 KB] 30 August 2017

• Plaintiff's Notice of Appeal Regarding Dismissal [pdf, 35 KB] December 20, 2016

• Exhibit 1 [pdf, 70 KB] and Exhibit 2 [pdf, 43 KB]

Also note: "How long does it take from the time of the notice of appeal until oral argument? For civil, agency, or bankruptcy appeals, cases are typically scheduled for oral argument 12- 20 months from the notice of appeal date. If briefing isn’t delayed, this is typically approximately 9-12 months from completion of briefing."--The Appellate Lawyer Representatives’ Guide To Practice in the United States Court of Appeals for The Ninth Circuit (June 2017 ed.) (pdf), p. 16 (emphasis added).

Opinion and Analysis by the Editor of Domain Mondo: 
Donuts (Ruby Glen) has an extremely weak case, which it should have never filed. By appealing, Donuts is setting itself up--and all other registry operators and new gTLD applicants, now, and in the future (under the common law principle of stare decisis)--for a Ninth Circuit decision that will (but for a few narrow exceptions) "close the courthouse door" to all future wannabe gTLD litigants.

Verisign $VRSN is in no hurry to launch .WEB, as there is a pending CID from the Antitrust Division of the U.S. Department of Justice, and ICANN also has a pending CEP (pdf) with Donuts and Ruby Glen. In the meantime, most other new gTLDs are "dying on the vine" in the global market for domain names as "essentially, an unwanted and defective product."  The further away from the stench of the failing new gTLDs that Verisign is able to position .WEB, the more successful .WEB will be once launched. Once launched (and properly marketed), few doubt that Verisign will quickly recoup all of its upfront investment in .WEB  ($135Million+) and will thereafter enjoy years of a recurring cash flow stream well in excess of a hundred million dollars annually. As others have also noted, .WEB is, potentially, the only "must have" new gTLD for developers, investors, speculators, and trademark registrants, alike.

For further background, see on DomainMondo.com: News Review: ICANN Webinars ...  2) Other ICANN news a. New gTLD .WEB Litigation Sep 10, 2017, excerpt:

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DISCLAIMER

ICANN New gTLDs' Covenant Not To Sue Sinks Donuts, DCA Trust Next?

Oyez! Oyez! Oyez! Take notice all ye new gTLD applicants, the Applicant Guidebook's Covenant Not To Sue means what it says, you waive your rights to sue ICANN, so rules the Honorable Percy Anderson, U.S. District Court Judge: 

Covenant Not To Sue in New gTLDs Applicant Guidebook 

Final paragraph of Judge Anderson's Order in Ruby Glen vs ICANN (highlighting added), dismissing with prejudice Ruby Glen's First Amended Complaint (FAC):

The District Court's Order and Judgment are embedded below. Further, in a footnote, Judge Anderson stated: [1] The Court does not find persuasive the preliminary analysis concerning the enforceability of the covenant not to sue conducted by the court in DotConnectAfrica Trust v. ICANN, Case No. 2:16-cv-862 RGK (JCx) (C.D. Cal. Apr. 12, 2016).

The Ruby Glen (affiliate of Donuts Inc.) lawsuit involved new gTLD .WEB. The DotConnectAfrica Trust (DCA Trust) lawsuit involves new gTLD .AFRICA, and has been remanded by the U.S. District Court to a California state court in Los Angeles. Ruby Glen and Donuts also have a pending CEP (Cooperative Engagement Process) proceeding in connection with the .WEB last resort auction won by Nu Dot Co. For more see .AFRICA, .WEB, ICANN Litigation Update, IRP & CEP Status Report (15 Nov 2016).

Whether Ruby Glen (Donuts) will appeal is unclear, although Jon Nevett, Donuts co-founder and Executive Vice President, released a statement according to DomainNameWire.com, stating "Donuts disagrees with the Court’s decision ... Donuts will continue to utilize the tools at its disposal to address this procedural failure."

If  Ruby Glen (Donuts) does appeal, that could be doing ICANN a big favor as ICANN would like a published Ninth Circuit Court of Appeals opinion affirming Judge Percy Anderson and enforcing the Covenant Not To Sue, which could then be cited as legal precedent in any case brought by new gTLD applicants, now, or in future rounds of new gTLDs.

Order dismissing (pdf):

Final Judgment (pdf):

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