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.AMAZON: an injustice righted?

10 August 2017

Just over 500 days ago Amazon applied to the International Centre for Dispute Resolute under ICANN’s Independent Review Process (IRP). Amazon contended that the ICANN Board were wrong to deny its applications for a .AMAZON registry and its Chinese and Japanese derivation.  

On 11 July 2017 the panel released its final declaration. Although one of the three panelists submitted a “Concurring and partially dissenting opinion”, the panel found in favour of Amazon. The ICANN Board, and in particular its New gTLD Program Committee, was wrong to give such deference to the Government Advisory Committee (GAC): “The Board acted in a manner inconsistent with its Articles, Bylaws and Applicant Guidebook….The Board failed in its duty to explain and give adequate reasons for its decision….The GAC, as a constituent body of ICANN, failed to allow the applicant to submit any information to the GAC and thus deprived the applicant of the minimal degree of procedural fairness before issuance of its advice, as required by the Bylaws”.

If you are interested in the values of transparency, accountability and stability which ICANN espouses, we recommend that you read the IRP’s final declaration at: https://www.icann.org/en/system/files/files/irp-amazon-final-declaration-11jul17-en.pdf.

The declaration is significant for the wider ICANN community, clarifying that “The Board cannot simply accept GAC consensus advice as conclusive” since this would be tantamount to a veto; rather, it must contemplate and record its independent rationale for such a decision. 

The ICANN Board formally rejected Amazon’s applications in 2014 after receiving Consensus Advice from the GAC in 2013 that the application should not proceed. Many in the ICANN community felt this was unfair because the application had been awarded a score of 100% by ICANN’s independent evaluators. It had also withstood a challenge from an ICANN’s Independent Objector Allain Pellet: Professor Luca Radicati di Brozoli, who was retained as an Independent Expert by the International chamber of Commerce’s International Centre for Expertise, found that Pellet was wrong, “The applied for string .AMAZON would not pose a material detriment to the region or the people who inhabit the geographic region proximate to the Amazon River…there is no material detriment to the Amazon community”.

The declaration touches lightly on what we always felt was a key moment in this sad tale. We were there in July 2013 at the ICANN 47 Meeting in Durban when the representative of Peru whilst seeking support for a GAC Consensus Objection against .AMAZON, stated “that the applications should be rejected because “Amazon” was an ISO “listed” geographic name in the Guidebook; a statement which the parties now agree was erroneous”. We knew that Peru was wrong as the application had already passed the mandatory Geographic Names Panel Review during the evaluation process. The application never required government consent, as Peru insisted, so influencing many governments to take its side. Crucially Amazon was never given the chance to address the GAC to correct this error.

We would like to think that the ICANN Board will now do the right thing and grant Amazon its registries. Commentator after commentator has come out in support of Amazon. Professor Milton Mueller of the Georgia Institute of Technology School of Public Policy, for example, describes this as, “A victory for fairness and rule-based internet governance”.

Mueller summarises the feelings of many (http://www.internetgovernance.org/2017/07/23/amazon-win-sets-good-precedent/): “The .AMAZON case is a good example of how, during its new gTLD program, ICANN allowed its processes to be hijacked by politics, usually emanating from the GAC. In numerous cases, pre-established rules and principles were abandoned and application guidelines modified on the fly simply because the GAC wanted to have discretionary power over top level domain applications….In the AMAZON case this led to a palpably absurd result. A regime that was established to mediate domain name – trademark conflicts denied an application by a company for its own name – a company that had a registered trademark for AMAZON in over 170 nations, and whose use of the name is so well-known globally that it has obtained secondary meaning (in English) that is largely unrelated to the South American region. And it denied the application not because someone else also wanted the name, and not because of any harm to a community, but simply because a few representatives of Latin American governments wanted to flex their muscles”.

What happens next? The declaration says, “The Panel recommends that the Board of ICANN promptly re-evaluate Amazon’s applications… the Board should make an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon’s applications. Further, if the Board determines that the applications should not proceed, the Board should explain its reasons supporting that decision. The GAC consensus advice, standing alone, cannot supplant the Board’s independent and objective decision with a reasoned analysis… In light of our declaration, we recommend that ICANN do so within sixty (60) days of the issuance of this Final Declaration”.

We have been monitoring the ICANN website. No dates have been published for a Board-GAC meeting. Indeed we can’t see any dates for any future Board Meetings. We’d like to think that this will be resolved in 60 days but we fear it may drag on. Seven out of ICANN’s 20 current Board were on the NGPC or the full Board when these decisions were taken. The old fear that Governments might withdraw from multi-stakeholder ICANN and try to take internet governance to the International Telecommunications Union remains.