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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New gTLD AFRICA Appeal: DCA Trust Answering Brief vs ICANN & ZACR

DotConnectAfrica Trust v. ICANN UPDATE September 9, 2016: ICANN’s Reply Appellate Brief [PDF, 276 KB] and ZACR's Reply Appellate Brief [PDF, 195 KB].

UPDATE September 2, 2016: ZACR's Reply in Support of Motion to Intervene [PDF, 46 KB].

UPDATE August 29, 2016: Plaintiff DotConnectAfrica Trust's Response to ZACR’s Motion to Intervene [PDF, 412 KB], embedded below (highlighting added):

UPDATE August 26, 2016: New gTLD applicant Dot Registry, LLC, has filed motion for leave to file amicus curiae (friend of the court) brief in support of DCA Trust . Motion with attached Amicus Curiae Brief embedded below (highlighting added):

--original post below--

"ICANN expressly agreed to process gTLD applications fairly and transparently. Instead, ICANN colluded with ZACR to award the .Africa domain to the AUC [African Union Commission]. The district court properly granted DCA’s motion for a PI [preliminary injunction] and properly affirmed the PI on reconsideration. DCA respectfully requests this Court affirm those decisions."--Conclusion of Answering Brief filed by DocConnectAfrica Trust (DCA Trust), infra (emphasis added)

DotConnectAfrica Trust (DCA Trust), appellee, has filed its Appellate Answering Brief together with Supplemental Excerpts of the Record (both embedded below), in response to briefs filed by appellants ICANN and ZA Central Registry (ZACR). The issues in this consolidated interlocutory appeal by ICANN and ZACR to the Ninth Circuit Court of Appeals, involve whether the U.S. District Court properly granted DCA Trust's motion for preliminary injunction "barring ICANN from delegating the rights to .AFRICA until this case is resolved." See District Court Order (pdf).

Case Status: ICANN's and ZACR's optional reply briefs are due September 9, 2016. Meanwhile the U.S. District Court has assigned the case to a 10-12 day jury trial beginning February 28, 2017. See Scheduling Order (pdf).

For more on this case, see the previous posts (and links therein), on Domain Mondo: ICANN and Dot AFRICA: Dismissed Party ZACR Files Notice of Appeal (includes ICANN brief); and .AFRICA: DCA Trust v ICANN, ZACR Motion to Intervene & Opening Brief.

Appellee DCA Trust's Answering Brief (pdf) embed below (highlighting added):

Supplemental Excerpts of the Record (pdf) embed below (highlighting added):


Most document filings in this case are available on the ICANN website at: DotConnectAfrica Trust v. ICANN | ICANN.org. 

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.AFRICA: DCA Trust v ICANN, ZACR Motion to Intervene & Opening Brief

UPDATE: DotConnectAfrica Trust v. ICANN -- the plot thickens --

"ZACR seeks to intervene pursuant to Fed. R. Civ. P. 24(a), or alternatively, under Fed. R. Civ. P. 24(b), as a defendant to the Ninth and Tenth causes of action to enforce its right to .Africa. Intervention is proper because ZACR has an interest in the Registry Agreement which may be impaired or impeded by the disposition of this action and ZACR’s interest is not adequately represented by the existing parties." --ZACR's Memorandum of Points and Authorities (pdf)

Dismissed defendant, ZA Central Registry, which filed an interlocutory appeal, has now filed its opening brief (embed below), and has also filed a motion to intervene as a party:

• ZACR's Notice of Motion and Motion to Intervene [PDF, 232 KB] scheduled for September 19, 2016 hearing;
• Memorandum of Points and Authorities [PDF, 166 KB] (embed below)
• Declaration of David W. Kesselman [PDF, 42 KB] 1 August 2016
• ZACR's Opening Appellate Brief [PDF, 275 KB] 22 July 2016 (embed below)

The DotConnectAfrica Trust answering brief is due August 19, 2016. The optional reply brief is due September 9, 2016.  Meanwhile the U.S. District Court has assigned the case to a 10-12 day jury trial beginning February 28, 2017. See Scheduling Order (pdf).  

See also: ICANN and Dot AFRICA: Dismissed Party ZACR Files Notice of Appeal | DomainMondo.com and the history and background of this case at .africa | Wikipedia.org.

ZACR's Opening Appellate Brief (embed below):


Memorandum of Points and Authorities in support of ZACR's motion to intervene:



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New gTLD AFRICA Litigation: Defendant ZACR Dismissed as a Party

See UPDATE June 24: ICANN and Dot AFRICA: Dismissed Party ZACR Files Notice of Appeal.

UPDATE: On June 20, 2016, the U.S. District Court denied ICANN's motion for reconsideration of the Order enjoining ICANN from delegating new gTLD .AFRICA. The trial judge, Hon. R. Gary Klausner, has obviously carefully read and considered the IRP Final Declaration in this matter, upon which Plaintiff has relied in support of its claims. The case has already been assigned to a 10-12 day jury trial beginning February 28, 2017 (see scheduling Order further below) and ICANN is due to file its appellant's brief on June 29, 2016, in its interlocutory appeal to the Ninth Circuit of the District Court's Preliminary Injunction Order. The Court's June 20, 2016, Order is embedded below (highlighting added):

--original post below--
In the new gTLD .AFRICA litigation, Case No. 16-CV-00862 RGK (JCx), DotConnectAfrica Trust (DCA Trust) v. Internet Corporation for Assigned Names and Numbers (ICANN) & ZA Central Registry (ZACR), the U.S. District Court for Central District of California at Los Angeles, Honorable R. Gary Klausner, U.S. District Judge, has granted ZACR's Motion to Dismiss the Complaint (as to defendant ZACR only), concluding, along with other reasons (see embed below):

"... the Court finds Plaintiff’s first request against ZACR (i.e., that the Court declare the registry agreement null and void) unnecessary, as a favorable ruling on its claims against ICANN will result in the relief it seeks ..." (emphasis added)

The District Court has also set the case for a jury trial (estimated length: 10−12 days), starting February 28, 2017 at 09:00 AM (see scheduling conference proceedings embedded further below).

ICANN has filed an interlocutory appeal of the District Court's order granting Plaintiff DCA Trust's motion for preliminary injunction which enjoined ICANN from delegating the new gTLD .AFRICA. That appeal is pending before the U.S. Court of Appeals for the Ninth Circuit, and appellant ICANN's opening brief is due June 29, 2016; appellee DCA Trust's answering brief is due July 29, 2016; and ICANN's optional reply brief is due within 14 days after service of the answering brief. See Order (pdf).

District Court ruling (highlighting added):


Scheduling conference proceedings (highlighting added):


See also on Domain Mondo:

• News Review [May 15]: IANA, ICANN, New gTLDs .AFRICA, .AMAZON, .BLOG: ".AFRICA UPDATE: "ICANN has appealed the U.S. District Court's Order granting a Preliminary Injunction in the DCA (DotConnectAfrica) Trust vs ICANN and ZACR litigation over new gTLD.AFRICA ..."
• News Review [Apr 17]: dotAFRICA, Public Interest, Judge Holds ICANN Accountable
• Will ICANN File An Interlocutory Appeal in DCA Trust gTLD AFRICA Case? 13 April 2016
• New gTLD AFRICA: DotConnectAfrica Trust vs ICANN, End of the Line? 21 March 2016
• US Federal Court Enjoins ICANN From Delegating New gTLD dot AFRICA 5 March 2016
• DCA Trust IRP Decision: ICANN Failed the Global Internet Community 12 July 2015

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