[lac-discuss-es] Fwd: [IGP Announce] Amazon win sets good precedent
JULY 23, 2017
AMAZON WIN SETS GOOD PRECEDENT
In a victory for fairness and rule-based Internet governance, an independent
review panel (IRP) has decided that ICANN was wrong to deny retailing giant
Amazon, Inc. the top level domain AMAZON. Key elements of the decision were
unanimous, particularly the conclusion that the Board “cannot accept GAC
consensus advice as conclusive.” ICANN’s board, in denying the application,
failed to provide sufficient reasons for doing so, the panel ruled. The
majority of the panel also concluded that the GAC was at fault for not treating
Amazon fairly.
We believe the IRP made the right decision, and we hope the ICANN board and the
GAC will come to their senses and simply allow the TLD to be awarded to Amazon
and be done with it. The main roadblock to this obvious solution is the
perception, which we believe to be misguided, that objections from Latin
American countries have some merit and therefore some “win-win” solution, most
likely involving payoffs to someone, must be found. This will just muddy the
waters and prolong the dispute.
We prefer a cleaner solution with better long-term consequences for Internet
governance – a solution that does not encourage governments or other objectors
to make claims not based in any law or engage in hold up politics in the
future. We need to recognize that certain countries were playing identity
politics and making bad arguments, and turn our back on that.
Here’s why the objections to the .AMAZON application are baseless:
Good governance requires clear, pre-specified and objective rules – rule of
law, not rule of men. Amazon followed ICANN’s application rules. None of the
strings applied for by Amazon are listed as ‘geographic names’ in ICANN’s
Applicant Guidebook, and thus were not subject to government pre-approval. The
new gTLD process also anticipated applications for “brand” top level domains
and there was nothing unexpected about it. The objectors to the application
were trying to change the rules in the middle of the game.
The parties objecting to the application had no application of their own, no
alternative ideas about how to use the domain. Indeed, in an attempt to resolve
the dispute, Amazon reputedly offered to cover the costs of applying for
AMAZONAS or AMAZONIA, but there were no takers. (In the region itself, as well
as in many other parts of the world, the region goes by those names) They just
wanted to prevent Amazon from having it.
Objectors never provided even a minimally plausible case that this
appropriation harmed anyone or anything. The .AMAZON application was challenged
using ICANN’s “community objection” criteria, but an expert report found that
the TLD “would not pose a material detriment to the region or the people who
inhabit the geographic region proximate to the Amazon River.”
The horse is already out of the barn. If indeed .AMAZON constituted some kind
of illegitimate cultural appropriation, then why doesn’t AMAZON.COM? Or all the
Amazon trademarks? There is no rational distinction between any of these uses.
Can anyone show how the people or environment of the Amazon region have been
harmed by the use of these names?
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
Governmental Advisory Committee (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.
Regardless of whether Amazon actually gets the TLD, this case has important
precedent value. The ruling says that the ICANN board cannot simply defer to
consensus GAC advice. If it upholds that advice, it must set forth reasons and
explain why the reasons reflect “well-founded and credible public policy
interests.” As one of the panelists noted, “For me, the key requirement is that
there be a ‘well-founded’ basis for the [Board’s] conclusion.” Once Amazon had
rebutted the presumption in favor of following GAC advice, he wrote, “the
burden of making that showing became ICANN’s to bear. It failed to do so.”
Inicio del mensaje reenviado:
> De: "Internet Governance Project" <info@xxxxxxxxxxxxxxxxxxxxxx>
> Fecha: 24 de julio de 2017, 01:54:47 CLT
> Para: hcarrascob <hcarrascob@xxxxxx>
> Asunto: [IGP Announce] Amazon win sets good precedent
> Responder a: "Internet Governance Project" <info@xxxxxxxxxxxxxxxxxxxxxx>
>
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> July 24, 2017
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> Amazon win sets good precedent
> More Recent Articles
> Amazon win sets good precedent
>
> In a victory for fairness and rule-based Internet governance, an independent
> review panel (IRP) has decided that ICANN was wrong to deny retailing giant
> Amazon, Inc. the top level domain AMAZON. Key...
>
> Read the whole entry »
>
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