THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/479/ICANN/96

AMERICAN ASSOCIATION OF INDEPENDENT MUSIC (A2IM)
(USA)
vs/
AMAZON EU S.À R.L.
(LUXEMBOURG)

This document is an original of the Expert Determination rendered in conformity with the
New gTLD Dispute Resolution Procedure as provided in Module 3 of the gTLD Applicant
Guidebook from ICANN and the ICC Rules for Expertise.

INTERNATIONAL CHAMBER OF COMMERCE

INTERNATIONAL CENTRE FOR EXPERTISE

CASE NUMBER

EXP/479/ICANN/96
AMERICAN ASSOCIATION OF INDEPENDENT MUSIC (A2IM) (USA) vs/AMAZON EU S.À R.L. (LUXEMBOURG)OBJECTION TO .SONG (DOT SONG)

CONCERNING APPLICATION ID 1-1317-53837

CONSOLIDATED WITH CASES EXP/461/ICANN/78, EXP/480/ICANN/97
AMERICAN ASSOCIATION OF INDEPENDENT MUSIC (A2IM) (USA) vs/AMAZON EU S.À R.L. (LUXEMBOURG) and
AMERICAN ASSOCIATION OF INDEPENDENT MUSIC (A2IM) (USA) vs/AMAZON EU S.À R.L. (LUXEMBOURG)

EXPERT DETERMINATION

By
PROFESSOR FRANCISCO ORREGO VICUÑA
_____________________________TABLE OF CONTENTSI.

INTRODUCTION 4
A. The Objector 4
B. The Applicant 5
C. The Expert 6

II.

PROCEDURE 6
A. Governing Rules 6
B. Place of the Proceedings 6
C. Nature of the Objection 6
D. Consolidation 7
E. Language 7
F. Means of Transmission 7
G. Procedural Steps 7

III.

OBJECTOR’S STANDING TO FILE A COMMUNITY OBJECTION 9
A. The Objector’s Position and Arguments 9
B. The Applicant’s Position and Arguments 11
C. The Expert’s Findings 12

IV.

THE SUBSTANTIVE STANDARDS GOVERNING THE MERITS OF
THE OBJECTION 15
A. The Objector’s Position and Arguments 16
B. The Applicant’s Position and Arguments 17
C. The Expert’s Findings 20

V.

DECISION 25

2

ABBREVIATIONS“Applicant” is an entity that has applied to ICANN for a new gTLD.
“Application” is the submission to ICANN of a request for registration of a new gTLD.
“Community Objection” is the objection to an Application on the basis of substantial
opposition to it from a significant portion of the community to which the string may be
explicitly or implicitly targeted.
“DNS” is the Domain Name System.
“DRSP Rules” are the Rules for Expertise of the International Chamber of Commerce
applicable to a “Community Objection”.
“Expert” is a member of a panel constituted with one expert.
“Expert Determination” is the decision on the merits of an Objection rendered by apanel under the applicable DRSP Rules.
“Respondent” is the Applicant responding to the Objection.
“Objection” is the filing in ICANN opposing registration of a new gTLD for which an
Application has been submitted.
“Objector” is one or more persons or entities who have filed an objection against a newgTLD for which an Application has been submitted.
“Panel” is the panel of Experts constituted by the Dispute Resolution Service Provider.
“gTLD” is a New Generic Top-Level Domain.
“GAC” is the ICANN Government Advisory Committee.
“ICANN” is the Internet Corporation for Assigned Names and Numbers.
“ICC” is the International Chamber of Commerce.
“IFACCA” is the International Federation of Arts Councils and Culture Agencies.
“Procedure” is the New gTLD Dispute Resolution Procedure, attachment to Module 3of the gTLD Applicant Guidebook.
“TLD” is a Top-Level Domain.

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EXPERT DETERMINATION
IN THE CASE

EXP/479/ICANN/96(CONSOLIDATED WITH CASES EXP/461/ICANN/78, EXP/480/ICANN/97)

OBJECTION TO THE APPLICATION IN RESPECT OF THE TOP LEVELDOMAIN NAME .SONG (DOT SONG) (APPLICATION ID 1-1317-53837)

I. INTRODUCTION

1. This Expert Determination is adopted in the above-referenced case under the
New Generic Top-Level Domain (gTLD) Names Dispute Resolution
Procedure of the Internet Corporation for Assigned Names and Numbers(ICANN), administered by the International Centre for Expertise of theInternational Chamber of Commerce (ICC).

A. THE OBJECTOR

2. The Objector in this case is:

AMERICAN ASSOCIATION OF INDEPENDENT MUSIC (A2IM)
Mr. Rich Bengloff
132 Delancey Street, 2nd Floor
New York, NY10002
USA
Telephone: +1 646 692 4877
Email: rich@a2im.org

The Objector is represented by:

DOTMUSIC
4

Mr. Constantinos Roussos
950 S. Flower Street 1404
Los Angeles, CA 90015
USA
Telephone: +1 310 985 8661
Email: costa@music.us

and
ESQWIRE.COM, P.C.
Mr. Jason B. Schaeffer
1908 Route 70 East
Cherry Hill, NJ 08003
USA
Telephone: +856 874 9651
Email: jason@ESQwire.com

B. THE APPLICANT

3. The Applicant in this case is:

AMAZON EU S.À R.L.
Ms. Lorna Jean Gradden
5 rue Plaetis
Luxembourg L-2338
Luxembourg
Telephone: +352 26733 300
Email: lorna.gradden.am1@valideus.com

The Applicant is represented by:

THE GIGALAW FIRM
Mr. Douglas M. Isenberg
5555 Glenridge Connector, Suite 200
Atlanta, Georgia 30342
5

USA
Telephone : +1 404 348 0368
Email: disenberg@GigaLawFirm.com

C. THE EXPERT

4. The appointed Expert in this case is:Professor Francisco Orrego Vicuña
Avenida El Golf No. 40
Santiago 755 0107
Chile
Telephone: +56 2 24416325
Email: forregovicuna@20essexst.com

II. PROCEDURE

A. GOVERNING RULES

5. This case is governed by the Rules for Expertise of the ICC, supplemented
by the ICC Practice Note on the Administration of Cases under the
Attachment to Module 3 of the gTLD Applicant Guidebook, New gTLD
Dispute Resolution Procedure of the gTLD Applicant Guidebook(Procedure), as well as by the Articles and rules established in the Applicant
Guidebook noted.

B. PLACE OF THE PROCEEDINGS

6. The place of the proceedings is, in accordance with Article 4(d) of theProcedure, location of the ICC International Centre for Expertise in Paris,
France.

C. NATURE OF THE OBJECTION
6

7. The Objection is made on the ground of Community Objection in accordancewith Article 2 of the Procedure.

D. CONSOLIDATION

8. The ICC International Centre for Expertise informed the parties on 24 April
2013, that case EXP/479/ICANN/96 was to be consolidated with cases
EXP/461/ICANN/78 and EXP/480/ICANN/97 pursuant to Article 12 of theProcedure. These other cases are the subject of separate Expert
Determinations.

E. LANGUAGE

9. All submissions and correspondence in these cases have been made in
English in accordance with Article 5(a) of the Procedure.

F. MEANS OF TRANSMISSION

10. In accordance with Article 6(a) of the Procedure all communications
concerning this case were transmitted electronically.

G. PROCEDURAL STEPS
11. The Objection in this case was submitted on 13 March 2013. Applicant’s
Response was submitted on 16 May 2013.

12. The Expert in this case was appointed by the Chairman of the Standing
Committee of the ICC International Centre for Expertise on 12 June 2013.
The file was transmitted to the Expert by the ICC International Centre forExpertise on 16 July 2013. The Expert is the sole member of the Panel inaccordance with Article 13 of the Procedure.

713. Following the transmission of the file the Expert wrote to the Parties on 19
July 2013, so as to begin the organization of the proceedings.

14. On 29 July 2013, the Objector submitted to the ICC International Centre forExpertise a Request for Leave to File Additional Submission in reply to
Applicant’s Response to Objection. Upon the instructions of the ICC
International Centre for Expertise the Objector referred the Request to theExpert on 30 July 2013.
15. On 30 July 2013, the Expert invited the Applicant to comment on the
Objector’s Request. The Applicant submitted its comments on 31 July 2013.
Further comments on the topic were made by the Objector and by the
Applicant on 31 July and 1 August respectively.

16. On 2 August 2013 the Expert decided that this Request was denied, stating tothis effect the following:“Having examined the file and the information and arguments submitted
by the Objector and the Applicant, the Expert is of the opinion that it
contains all the necessary elements required to reach a Determination on
this dispute. Accordingly the Expert considers that there is no need toinvite additional submissions as envisaged under Article 17 (a) of theProcedural Rules governing these proceedings.
The Expert further notes the Applicant’s comment to the effect that under
Article 18 of the Procedural Rules production of documents is limited to
exceptional cases. No such exceptional case exists at this time.
On the basis of these considerations the Request is denied and its contents
are not to be included in the file of this case. This is without prejudice tothe possibility that if the Expert finds there is a need for further
information as is prepares its Determination, it may invite the parties toprovide this information as envisaged under Article 18.”

17. No hearings were held in this case.

818. The Expert´s Determination was transmitted to the ICC International Centre
for Expertise on 22 August 2013 within the 45 day period envisaged in
Article 21(a) of the Procedure.
19. On 10 October 2013 the Objector submitted a further Request for the Expert
to consider some additional material that became available on the
Applicant’s Application. The Applicant replied to this Request on 11
October 2010. On this last date the Expert did not accept this Request inview that the draft Determination had already been submitted to the ICC
International Centre for Expertise. Additional comments from the Objector
were received following this ruling by the Expert.
III. OBJECTOR’S STANDING TO FILE A COMMUNITY OBJECTION

20. Article 3.2.2.4 of the Guidebook identifies the requirements for filing a
Community Objection. These requirements refer to the need for the Objector
to be an established institution which has an ongoing relationship with aclearly delineated community, indicating the main criteria that must be
proved to the satisfaction of the Expert.
21. The Parties’ have different views about whether these requirements havebeen met as will be summarized below. The Expert should note at the outsetthat since the Objection in this case is based on that concerning the .Music
domain name as submitted in Case Number EXP/461/ICANN/78
occasionally “music”, “song” and “tunes” are used by the Objector
interchangeably in this case.

A. THE OBJECTOR’S POSITION AND ARGUMENTS

22. The Objector in this case firstly notes the importance of the Independent
Music Sector since the beginning of the recording industry and identifies theAmerican Association of Independent Music (A2IM) with such community,
on whose behalf it objects to the Application here considered. The

9community is described as a broad coalition of music labels comprising over
32.6% of the United States music industry market share.

23. As the independent music sector represents the largest market share ofcommercial music, including 90% of music released, the Objector assertsthat it represents a significant portion of that community. Member labels of
A2IM represent a clearly delineated community. It notes the non-profit trade
nature of this organization. In turn the Objector maintains that the Associate
members of A2IM represent a significant portion of the global music
community.

24. It is also argued that A2IM represents a significant portion of the music
community making up the World Independent Network (WIN), to which it
provides advocacy and representation services, commerce opportunities andother services, thus providing a central, positive voice for independent musiccompanies. Among the many objectives listed for A2IM, fair trade,technology and distribution and media access are noted.

25. The clearly delineated community of substantial size that A2IM represents, it
explains, includes the United States Independent label music community,
WIN, the Association of Independent Music, the Independent Music
Companies Association (IMPALA) and Medlin Network. Collectively, allsuch associations constitute a significant portion of the music community towhich the string is explicitly or implicitly targeted. All such entities
substantially oppose the Application.
26. The Application which is objected to creates, in the Objector’s view,material economic detriment to millions of independent music entities as it
would prevent registering domains under popular music-themed strings, suchas .Song. It also asserts that the improved access to music consumers andindependent music businesses is critical for efficient music distribution. This
would inevitably result in strengthening the position of the Applicant as thesecond largest online music retailer, while such Applicant would take 30% in“middle-man” fees as opposed to the 100% of sales independents would
10

receive if they were allowed to compete under a verified community-based
music-themed string.

27. The Objector further maintains that Amazon has a history of market power
abuse resulting in detrimental mass copyright infringement, noting its large
advertising in Google ad-funded pirate networks.
B. THE APPLICANT’S POSITION AND ARGUMENTS

28. The Applicant in its Response maintains that the Objector lacks standing tofile the Objection as it has failed to prove that it is an established institution
associated with a clearly delineated community as mandated under Article
3.2.2.4 of the Guidebook. The Applicant considers that the community the
Objector purports to represent is excessively large, diverse and complex andthus it is not clearly delineated. In the best of cases the Objector could
represent one segment of a portion of the music community, such as the“American” component indicated in the Objector’s name.

29. Neither does the Objector qualify as an established institution in the
Applicant’s view, lacking adequate global recognition, lacking evidence as
to the length of time it has been in existence, except for a reference inpassing about a seven-year existence, and also lacking public historicalevidence of its existence such as a formal charter or national or international
registration, or validation by means of a government, inter-governmentalorganization or treaty. Neither does the Objector offer evidence about
qualifying as a not-for-profit trade organization.

30. The Applicant asserts further that the Objector has not proved its ongoing
relationship with the clearly delineated community envisaged, such as thepresence of mechanisms for participation, requirements of membership andspecific activities undertaken on a regular basis for the benefit of members.
The lack of evidence concerning the institutional purpose related to the11benefit of the associated community is also discussed by the Applicant, since
the Objector indicated only very general goals such as promoting sector
opportunity or improving business conditions. Neither is there any level offormal boundaries of the community identified. According to the Applicant,the Objector’s stated information is too vague and general to meet any ofthese requirements.
C. THE EXPERT’S FINDINGS

31. The Expert must first determine whether the Objector is an institution andmeets the standing requirement of Article 3.2.2.4 of the Guidebook in
respect of Community Objections. The Expert finds that the Objector isindeed a legally established institution although this requirement must also
be examined in the light of the factors listed in that Article so as to determine
whether such institution meets the substantive requirements of its standing as
an Objector for the purpose of this procedure. Such factors include but are
not limited to the level of global recognition of the Objector, the length oftime of its existence and the public historic evidence of such existence, withreference to some specific examples.
32. The level of global recognition of the Objector is in the Expert’s view very
limited. While there is reference to some associations of an international
scope this does not mean that it is the Objector that has qualified as a
globally recognized institution. In fact, as the Applicant has noted, theObjector would be rather related to the “American” music industry and not
to a global level of recognition.

33. The letters the Objector has submitted in support of its Objection in
Appendix H thereto are in essence produced by its current or former board
members, all written in mostly identical terms, thus falling short of therequirement of global recognition (See for example letters from Alligator, 19
February 2013; Beggars Group US, 21 February 2013; BMLG, 9 February2013). Most of such letters originate in United States based companies, with
only a few exceptionally originating elsewhere, mainly in Australia,
12Belgium, Germany, Canada and South Africa, and still fewer having someregional or international scope. In the context of a global market with asignificant number of participants from many continents and countries, therequirement of a global recognition calls for expressions of support of manyorganizations or institutions constituting the community, a standard not met
in the case of the Objection considered.

34. The Objector has also supplied in Appendix H to the Objection a long list ofmembers of the International Federation of Arts Councils and Culture
Agencies (IFACCA), comprising many governmental institutions around theworld, but with the indication that while dotMusic has been given “inprinciple approval by the board of IFACCA, it has not been endorsed byindividual member organizations” (.MUSIC (DOTMUSIC) Supporting
Music Community Organizations, first list under Appendix H, second
paragraph). In this context it becomes quite clear that governmental
institutions have not considered any form of participation in respect of thisObjection. A still longer list and description of the members of theInternational Association of Music Information Centres is supplied, also in
Appendix H, but the Objector only refers in respect of some of them to theprospective activity of working with such institutions. No specificagreements or activities are listed. These listings are comprehensive but offerno specific relationship with the Objector so that their probative value is null.
35. The letters and other material produced in support of the Objection evidence
that while there are a number of institutions concerned with the gTLD
registration in this ambit, this concern, legitimate as it might be, does notalter the fact that no specific community can be identified and hence therepresentative character of the Objector is more speculative than real. The
letters have been considered by the Expert but they cannot justify aconclusion different from what is here noted.

36. The Applicant has also noted that as to the requirement to provide evidenceof the time the Objector has been in existence, the Objection only indicates
its existence for seven years. In the Expert’s view this is enough to meet this13

particular criterion of the Guidebook as the main concern of the governing
rules is to ensure that the Objector will not have been established solely in
conjunction with the gTLD application process.

37. The public historical evidence of its existence is also weak but the Expert is
mindful that the factors listed in Article 3.2.2.4 of Module 3 of the ICANN
Guidebook are mere indications and not an exhaustive list.

38. The Expert thus concludes as regards the factors listed in respect of therequirement of the Objector being an established institution under Article
3.2.2.4 of the Guidebook that the Objector has proven its existence during aperiod of time sufficient to give it the standing to file an Objection. The
factors relating to global recognition or the public historical evidence about
its existence also indicated in that Article have not, however, beenadequately met.

The Panel turns now to the examination of otherrequirements under the Article in question which might shed light on the
Objector’s standing.
39. The second main requirement under Article 3.2.2.4 of the Guidebook is that
the Objector must have an ongoing relationship with a clearly delineatedcommunity. The factors to be considered to this end are also clearly provided
by that Article, notably the presence of mechanisms for participation,
institutional purposes for the benefit of the community, performance ofregular activities to this end and the level of formal boundaries of thecommunity. Again here the evidence offered by the Objector in respect of
this requirement is weak in several aspects. The Objector in his Objection is
only listing mechanisms for participation in activities, membership andleadership which are mostly related to very general institutional goals;
however, the Objector does not offer specific criteria or examples of suchparticipation. The same is true of the institutional purpose related to thebenefit of the associated community. How such purported benefits are to beachieved remains largely unexplained.

14

40. The very existence of a clearly delineated community is doubtful as any
meaningful formal boundaries will be too broad and difficult to identify. The
Expert is called to perform a balancing of the various factors discussed andother relevant information, and the Objector is not expected to satisfactorily
meet every such factor in order to attain adequate standing to file an
Objection. Indeed, Article 3.2.2.4 of the Guidebook in fine provides: “Thepanel will perform a balancing of the factors listed above, as well as otherrelevant information, in making its determination. It is not expected that an
objector must demonstrate satisfaction of each and every factor considered inorder to satisfy the standing requirements” . In spite of the best efforts toattain such a balanced consideration the fact remains that the nature of thecommunity in question does lend itself to serious doubts. The Expert thus
concludes that the Objector’s standing also fails in connection with thevarious factors that must be considered in the light of an ongoing
relationship with a clear delineated community.
41. The Objector’s argument has not clearly differentiated the question of its
standing from the discussion of the merits of the Objection. While there issome connection between the two sets of conditions, particularly as both
Articles 3.2.2.4 and 3.5.4 of the Guidebook refer to a clearly delineatedcommunity, the first on standing and the second on the merits, the essence ofthe respective requirements is different. Aside the fact that the latter Article
embodies a number of other requirements that must be met in their totality,
the threshold in connection to the specific factor of a clearly delineatedcommunity appears to be less demanding in respect of standing than inrespect of the merits, as this last one requires in particular a “strong”
association between the community invoked and the gTLD string objected
to. Notwithstanding these differences the Expert will consider also thevarious standards governing the merits of the Objection before reaching a
final determination on the arguments put forth by the Objector in support ofits Objection.

IV. THE SUBSTANTIVE STANDARDS GOVERNING THE MERITS OF THE
OBJECTION
15

42. Article 3.5.4 of the Guidebook sets out the standards applicable to a
Community Objection. This Article provides as follows in its opening
paragraph:“The four tests described here will enable a DRSP panel to determine
whether there is substantial opposition from a significant portion of thecommunity to which the string may be targeted. For an objection to be
successful, the objector must prove that:• The community invoked by the objector is a clearly delineatedcommunity; and• Community opposition to the application is substantial; and• There is a strong association between the community invoked and theapplied-for gTLD string; and• The application creates a likelihood of material detriment to the rights
or legitimate interests of a significant portion of the community to which
the string may be explicitly or implicitly targeted. Each of these tests is
described in further detail below”.

43. The Parties have expressed again differing views about the meaning of thesestandards and about whether the Objector meets the requirements set out
under the Article noted. The respective positions will be summarized next.
A. THE OBJECTOR’S POSITION AND ARGUMENTS

44. The Objection emphasizes the fourth test quoted above, namely the
likelihood of material damage posed by the Application. The Objector’s
position on the other three tests is largely subsumed under the considerations
made in connection with standing discussed above.

45. The Objection asserts that the Application creates a likelihood of material
detriment to the rights and interests of a significant portion of the music
community to which the string is targeted as competition will be affected by
Amazon’s market power in ecommerce and its inter-related monopoly.
16

Amazon is described as being by far the largest internet retailer with online
sales surpassing US$ 48 billion. Amazon and Apple have established aduopoly amounting to 80% of the online music retail market.
46. The size, diversity and significance of “music” is reflected in the fact that
this keyword is the most searched internet category with 226 million
monthly Google searches, to which other music-related keywords should be
added to reach billions of searches. Amazon’s music-themed string would be
granted a powerful domain monopoly that would include many related
keywords, including “songs”. The Objector refers in this context to theApplication’s statement admitting a monopoly position in ecommerce.
Artists and musicians would be unable to register a .Song domain to legallycompete with Amazon on the Internet. The business goals of Amazon would
result in a closely managed TLD by registering domains through a single
registrar that would prevent the activities of re-sellers in .Music and theexistence of a market in .Music domains. (The Expert must note that while
the Objection refers in this context to “.Music”, in fact it is making anargument in respect of “.Song”).

47. The Objection maintains that the Application thus completely anddiametrically contradicts ICANN’s objectives to increase competition andother ICANN Core Values, such as seeking informed participation. In the
Objector’s view the Applications made for .Music and .Tunes only make thesituation worse. Objections to these other Applications will be as noted
decided under separate Expert’s Determinations.

48. The absence of a market place will create a definite likelihood of material
harm to the legitimate interests of the music community, compounded by thefact that Amazon is the second largest advertiser in Google ad-funded pirate
networks. The annual harm caused by piracy has been estimated at US$ 12.5
billion. Amazon’s long history of anti-competitive behavior would thus befurther enhanced. The Objection notes in particular the fact that Amazon
received an ICANN Government Advisory Committee (GAC) Early
Warning for all its string applications based on competition grounds as it

17

would exclude other entities and potential competitors from using the TLD.
All such consequences would result in breach of both United States andEuropean Union anti-trust legislation and regulations.
B. THE APPLICANT’S POSITION AND ARGUMENTS

49. The Applicant asserts that the Objector has failed to meet the four tests
envisaged under Article 3.5.4 of the Guidebook.

50. The Objector first omits providing any evidence about the level of publicrecognition of the group as a community at a local and/or global levels, arequirement which as noted is intertwined with that concerning standing. It isthus not possible to ascertain the level of public recognition of such
purported community. The same holds true for the requirements concerning
the formal boundaries of the community, the length of time it has been in
existence, the global distribution of the community and the number of people
or entities that belong to such community.

51. The Applicant maintains next that the Objector has not proven substantial
opposition to the Application within the community it purports to represent.
The letters attached as Appendix H of the Objection do not show whether
they represent a sizable proportion of the relevant community, nor do they
explain how many members does the Objector have and its comparison withthe relative composition of the community.
52. It follows that it is not possible to ascertain either the representative nature of
the entities expressing opposition, the level of recognized stature or weight
among sources of opposition, the distribution or diversity among the sources
expressing opposition, the historical defense of the community in othercontexts or the costs incurred in expressing opposition by means of otherchannels. The Applicant notes that during the three-month period during
which the public was invited to submit comments on gTLD applications nocomments were received from the Objector opposing the .Songs Application.

18

(The Expert again notes that while the term “music” is used in this context
the argument made concerns “songs” domains).

53. The Applicant also maintains that the Objector has failed to meet the third
test of the applicable standards as no proof is provided about a strong
association between the string applied for and the community allegedly
represented by the Objector. In fact, there is no reference in the Application
to “independent music” nor does the Objector invoke any other publicstatement by the Applicant reflecting a strong association with such
community. Similarly no evidence of the public having associated theApplication to a targeting of the community in question has been provided
by the Objector, a factor, among other, also listed in Article 3.5.4 of the
Guidebook as a test of whether the Objection can prevail on the merits.

54. The Applicant emphasizes that the mission of the .Song registry is to create a
dedicated platform for Amazon which would provide additional controls of
the technical architecture of this domain, offering a stable and securefoundation for online communication, as it would also provide a platform forinnovation and the protection of intellectual property rights, none of which
relate to the existence of a strong association between the string in question
and the community the Objector claims to represent.

55. The fourth and last test under the Article 3.5.4 of the Guidebook is thatconcerning the likelihood of material detriment arising from the Application.
The Applicant asserts in this respect that the Objector has failed to address orprovide evidence about any of the six factors listed under the Article, namely
the nature and extent of the damage to the reputation of the community, that
the Applicant does not intend to act in accordance with the interests of thecommunity, interference with the core activities of the community,
dependence of the community on the Domain Name System (DNS) for its
core activities, nature and extent of concrete or economic damage to thecommunity, and level of certainty that detrimental outcomes would occur.

1956. The Applicant asserts that the Objector’s views that the Application will
thwart competition are unsupported and ignore many comments submitted to
ICANN to the contrary by a number of relevant institutions collected in
Annex 14 of the Response. These comments include those submitted byinstitutions, scholars and ICANN’s At-Large Advisory Committee to theeffect that TLDs would foster innovation, result in strong benefits, facilitate
online innovation and foster competition.

57. The Applicant further explains that accusations about market power abuse,pirate networks, anti-competitive behavior, exclusive access and other suchstatements are irrelevant, inaccurate or misleading. Registration of .Song
domains by the Applicant and related second level registrations would not
result in any anti-competitive effects as experience with other kinds ofregistration shows. Moreover, similar domain names, such as “music.com”,
have been registered by entities other than the Objector apparently without
creating any illegal monopoly or causing any harm to the Objector. (The
Expert again notes that while “music.com” is used in this context theargument made concerns “song” domains).

C. THE EXPERT’S FINDINGS

58. The Expert must first determine in respect of the merits of the Objection
whether there is in existence a clearly delineated community, which is thefirst factor listed in Article 3.5.4 of the Guidebook. The conclusion on thispoint is not different from what was already indicated in paragraphs 22, 35
and 40 above since there is a broad coalition of music labels without formal
delineation as a community. The Expert is mindful in this respect of thecomments made by Professor Alain Pellet in his role of the Independent
Objector established for the dispute resolution process under ICANN, whichhave been introduced in the record by the Applicant as pertinent to thisObjection. Under Article 3.2.5 of the Guidebook the Independent Objector
does not act on behalf of any particular persons or entities, but acts solely inthe best interests of the public who use the global Internet.

20

59. The Independent Objector has concluded that after reviewing all applications
made to ICANN “it is difficult in these cases to prove the existence of aclearly delineated community” because of the broad scope of a generic term
(Allain Pellet: “The Issue of “Closed Generic” gTLDs Applications-The
Views of the Independent Objector”, 16 May 2013, para. 4, Annex 6 ofApplicant’s Response to the Objection). The Independent Objector further
concludes that in most cases “such a delineated community does not exist”(Ibid. para. 5).

60. This Expert agrees with such comments insofar they are relevant for thisparticular dispute as in fact the generic nature of the term that identifies agiven TLD, such as that with which the Application in this case is concerned,
implies by necessity its use by many people and therefore lacks the
specificity that would allow for its clear delineation. A broad community
may exist at the generic level, as indeed would be the case of “Song”
because of the number of entities that will use this term, but this is notconducive to the clear delineation envisaged under this standard.

61. As a consequence of the above, the specific criteria set out under the
standard of Article 3.5.4 of the Guidebook for identifying a clearlydelineated community are quite difficult to meet. The Applicant
convincingly argues that the Objector has failed to produce evidence on any
such criteria, with reference to the public recognition of the group as acommunity, the formal boundaries of the community and persons considered
to form a part of it, the length of time about its existence, its global
distribution and the number of people or entities composing such
community. It is not difficult to realize that this lack of evidence is the resultof the community envisaged being too broad.
62. The question of substantial opposition is not different. In point of fact Article
3.5.4 of the Guidebook sets out a number of conditions that must be satisfied
by the Objector for the Objection to prevail. Among other factors considered
there is the number of expressions of opposition relative to the composition21

of the community, the representative nature of entities expressing opposition,
the level of recognized stature or weight among sources of opposition, thedistribution or diversity among sources of expressions of opposition,
including regional, subsectors, leadership and membership diversity, thehistorical defense of the community in other contexts and the costs incurredby objector in expressing opposition.
63. Whether the number of expressions of opposition relative to the compositionof the community can be measured in some way is difficult to establish as
the purported community itself is overly broad. With billions of users theexpressions of opposition would need to run in high numbers to meet thistest. Further, as noted in para. 33 above, the letters accompanying the
Objection do not seem to be overly representative of such community andsome of the entities expressing opposition do not appear to be very
representative either, even within the sectors to which they are associated.

64. The level of recognized stature or weight among sources of opposition as
expressed in the letters and material submitted by the Objector is alsodifficult to compare because the description of such sources and theinformation supplied is not sufficiently detailed to draw a comparison. It isalso quite evident that this situation makes it impossible for the Objector toprovide evidence about the defense of the community in other contexts or toprovide the description and costs of other channels used to convey
opposition.
65. The Expert must turn now to the issue of whether the Application has insome way targeted the Objector’s community. Under Article 3.5.4 of the
Guidebook the criteria indicated to determine whether targeting has occurred
includes statements contained in the application, other public statements by
the applicant and associations by the public. On the assumption that such a
community exists, the Objector must still prove “a strong association”
between the gTLD string applied for and the community which it claims torepresent.

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66. While an association exists of course between the gTLD applied for and theterm “song”, this is by definition a generic term that might relate to songs in
general but not specifically to the “independent music community” theObjector claims to represent. The Applicant has explained that the
Application does not refer to such a community at all nor are there otherstatements indicating a strong association or statements that might havetriggered an association by the public of such targeting. The extremely broad
definitions of song that the Applicant sets out in Annex 13 of its Response isenough to realize that none of those definitions lend themselves to establish astrong association with the community in the present case.

67. The last test on which the Expert must reach a determination is thatconcerning a likelihood of material detriment. The scope of the standard isquite precise on this matter. Two distinct kinds of damage are considered in
Article 3.5.4 of the Guidebook, the first being the nature and extent ofdamage to the reputation of the community, and the second the nature andextent of concrete or economic damage to the community. In either kind ofdamage the Objector must prove that the application creates a likelihood ofmaterial detriment to the rights or legitimate interests of a significant portionof the community to which the string may be explicitly or implicitly targeted .
In addition said Article requires evidence that the Applicant does not intend
to act in accordance with the interests of the community, that there will beinterference with the core activities of the community and dependence ofsuch community on the DNS for its core activities. In the end the level ofcertainty that detrimental outcomes would occur has to be established.

68. The Objector has not proved the likelihood of either kind of damage
occurring as a result of the eventual approval of the Application. The Expert
does not consider that it is likely that the reputation of the community couldin any way be affected by this Application nor is the reputation of A2IM or
any of its members at issue. Whether there would be a likelihood of concreteor economic damage to the community caused by the Application were it tosucceed has not been established either. While, as noted in paragraphs 22, 23
and 48 above, the Objector has indicated figures concerning the market
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participation that could be affected and some general estimate of the amounts
potentially involved in damages, this does not appear to be related to theinterests of a specific community which the Objector purports to represent
but rather refers to the global market in general.

69. In essence the discussion concerns the question whether competition will bethwarted as the Objector believes, or not affected at all as the Applicant
asserts. The Expert is mindful in this respect of the various institutional andscholarly opinions submitted by the Applicant to the effect that closed
domains and unified registration, while entailing some restrictions, result
rather in promoting online innovation and reduce the risk of abusive
registrations. Opinions to the contrary submitted by the Objector are rather
tenuous and do not address specifically some of the main issues underlying
this discussion, in particular whether damage of some kind is likely to occur
and competition affected as a result.

70. Whether there is market power abuse, support for pirate networks and anticompetitive behavior, as the Objector argues, is not something that can beestablished beforehand and is thus purely speculative. Should there be any
such consequence competition regulators will very well know how toaddress this problem, certainly in the context of United States and European
Union legislation which the Objector invokes. Any affected entity, including
the Objector, would be able to request investigations in that event.

71. It is thus not possible to conclude that there is in this case a likelihood of
concrete or economic damage to the community or that the Applicant intends
to act contrary to the interests of such community or interfere with its
activities. The dependence of the community on the DNS for its core
activities has not been proven either as many other kinds of registration of
second level domain names has not resulted in hampering those activities. In
fact the Applicant explains that the use of, for example, “cars.com” has not
resulted in any restriction of competition in that market, as neither has theuse of “music.com”, or “musician.com” (Applicant’s Response, p. 14). (The24

Expert here again notes that references to “music” are made in the context of
the argument concerning “songs”).

72. The Expert is directed to apply the very conclusions made explicit by thestandards discussed, which are three in number:“If opposition by a number of people/entities is found, but the grouprepresented by the objector is not determined to be a clearly delineatedcommunity, the objection will fail” (Article 3.5.4 of the Guidebook,“Community”, in fine).
“If some opposition within the community is determined, but it does notmeet the standard of substantial opposition, the objection will fail” (Article
3.5.4 of the Guidebook, “Substantial opposition”, in fine).

If opposition by a community is determined, but there is no likelihood ofmaterial detriment to the targeted community resulting from theapplicant’s operation of the applied-for gTLD, the objection will fail”(Article 3.5.4 of the Guidebook, “Detriment”, in fine).

73. The Objection has not satisfied any of these requirements, which under
Article 3.5.4 of the Guidebook

are moreover cumulative. Even if thestanding requirements would have been met, which is not the case, theObjection fails on the merits.

74. The Expert has no objection to the publication of this Determination in the
ICC’s webpage.

V. DECISION

For the above reasons and according to Article 21 (d) of the Procedure, I hereby
render the following Expert Determination:

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1.

AMERICAN ASSOCIATION OF INDEPENDENT MUSIC (A2IM)’s
Objection is dismissed.

2. Applicant AMAZON EU S.À R.L. prevails.
3. AMAZON EU S.À R.L.’s advance payment on costs shall be refunded by
the ICC International Centre for Expertise to AMAZON EU S.À R.L..

Date: 6 December 2013

Signature: _____________
Professor Francisco Orrego Vicuña
Expert26

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