THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/480/ICANN/97

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/480/ICANN/97
AMERICAN ASSOCIATION OF INDEPENDENT MUSIC (A2IM) (USA) vs/AMAZON EU S.À R.L. (LUXEMBOURG)OBJECTION TO .TUNES (DOT TUNES)

CONCERNING APPLICATION ID 1-1317-30761

CONSOLIDATED WITH CASES EXP/461/ICANN/78, EXP/479/ICANN/96
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.

3

EXPERT DETERMINATION
IN THE CASE
EXP/480/ICANN/97(CONSOLIDATED WITH CASES EXP/461/ICANN/78, EXP/479/ICANN/96)

OBJECTION TO THE APPLICATION IN RESPECT OF THE TOP LEVELDOMAIN NAME .TUNES (DOT TUNES) (APPLICATION ID 1-1317-30761)

I INTRODUCTION

1. This Expert Determination is adopted in the above-referenced case under the
New Generic Top-Level Domain (gTLD) Names Dispute Resolution Procedureof the Internet Corporation for Assigned Names and Numbers (ICANN),administered by the International Centre for Expertise of the International
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 toModule 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/480/ICANN/97 was to be consolidated with cases
EXP/461/ICANN/78 and EXP/479/ICANN/96 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 inaccordance 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 for Expertiseon 16 July 2013. The Expert is the sole member of the Panel in accordance with
Article 13 of the Procedure.

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.

7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 the Expert
on 30 July 2013.
15. On 30 July 2013, the Expert invited the Applicant to comment on the Objector’sRequest. 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 to thiseffect 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.

18. The Expert´s Determination was transmitted to the ICC International Centre forExpertise on 22 August 2013 within the 45 day period envisaged in Article 21(a)of the Procedure.
819. On 10 October 2013 the Objector submitted a further Request for the Expert toconsider some additional material that became available on the Applicant’s
Application. The Applicant replied to this Request on 11 October 2010. On thislast date the Expert did not accept this Request in view that the draft
Determination had already been submitted to the ICC International Centre forExpertise. Additional comments from the Objector were received following thisruling 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 a clearlydelineated community, indicating the main criteria that must be proved to thesatisfaction of the Expert.
21. The Parties’ have different views about whether these requirements have been
met as will be summarized below. The Expert should note at the outset that 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 the American
Association of Independent Music (A2IM) with such community, on whose
behalf it objects to the Application here considered. The community is described
as a broad coalition of music labels comprising over 32.6% of the United Statesmusic industry market share.

923. As the independent music sector represents the largest market share ofcommercial music, including 90% of music released, the Objector asserts that it
represents a significant portion of that community. Member labels of A2IM
represent a clearly delineated community. It notes the non-profit trade nature ofthis 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 and otherservices, 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, all such associations
constitute a significant portion of the music community to which the string is
explicitly or implicitly targeted. All such entities substantially oppose theApplication.
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, such as .Tunes. It also
asserts that the improved access to music consumers and independent musicbusinesses is critical for efficient music distribution. This would inevitably resultin strengthening the position of the Applicant as the second largest online musicretailer, while such Applicant would take 30% in “middle-man” fees as opposedto the 100% of sales independents would receive if they were allowed to compete
under a verified community-based music-themed string.

10

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

28. The Applicant in its Response maintains that the Objector lacks standing to filethe Objection as it has failed to prove that it is an established institution
associated with a clearly delineated community as mandated under Article 3.2.2.4of the Guidebook. The Applicant considers that the community the Objector
purports to represent is excessively large, diverse and complex and thus it is notclearly delineated. In the best of cases the Objector could represent one segmentof 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’sview, lacking adequate global recognition, lacking evidence as to the length oftime it has been in existence, except for a reference in passing about a seven-year
existence, and also lacking public historical evidence of its existence such as aformal charter or national or international registration, or validation by means ofa government, inter-governmental organization 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 the benefit of theassociated 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 of formal boundaries of
the community identified. According to the Applicant, the Objector’s stated
information is too vague and general to meet any of these requirements.

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C. THE EXPERT’S FINDINGS

31. The Expert must first determine whether the Objector is an institution and meetsthe standing requirement of Article 3.2.2.4 of the Guidebook in respect ofCommunity Objections. The Expert finds that the Objector is indeed a legally
established institution although this requirement must also be examined in thelight of the factors listed in that Article so as to determine whether suchinstitution meets the substantive requirements of its standing as an Objector forthe purpose of this procedure. Such factors include but are not limited to the levelof global recognition of the Objector, the length of time of its existence and the
public historic evidence of such existence, with reference to some specificexamples.
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, the Objector would berather related to the “American” music industry and not to a global level ofrecognition.

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, allwritten in mostly identical terms, thus falling short of the requirement of global
recognition (See for example letters from Alligator, 19 February 2013; Beggars
Group US, 21 February 2013; BMLG, 9 February 2013). Most of such lettersoriginate in United States based companies, with only a few exceptionallyoriginating elsewhere, mainly in Australia, Belgium, Germany, Canada andSouth Africa, and still fewer having some regional or international scope. In thecontext of a global market with a significant number of participants from many
continents and countries, the requirement of a global recognition calls forexpressions of support of many organizations or institutions constituting thecommunity, a standard not met in the case of the Objection considered.

12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 the world, butwith the indication that while dotMusic has been given “in-principle approval by
the board of IFACCA, it has not been endorsed by individual member
organizations”(.MUSIC(DOTMUSIC)

SupportingMusic

Community

Organizations, first list under Appendix H, second paragraph). In this context it
becomes quite clear that governmental institutions have not considered any formof participation in respect of this Objection. A still longer list and description of
the members of the International Association of Music Information Centres is
supplied, also in Appendix H, but the Objector only refers in respect of some ofthem to the prospective activity of working with such institutions. No specificagreements or activities are listed. These listings are comprehensive but offer no
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 thatwhile there are a number of institutions concerned with the gTLD registration inthis ambit, this concern, legitimate as it might be, does not alter the fact that no
specific community can be identified and hence the representative character of
the Objector is more speculative than real. The letters have been considered by
the Expert but they cannot justify a conclusion different from what is here noted.

36. The Applicant has also noted that as to the requirement to provide evidence ofthe 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 thisparticular 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.

1338. The Expert thus concludes as regards the factors listed in respect of therequirement of the Objector being an established institution under Article 3.2.2.4of the Guidebook that the Objector has proven its existence during a period oftime 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, been adequately met. The Panelturns now to the examination of other requirements 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 delineated community.
The factors to be considered to this end are also clearly provided by that Article,
notably the presence of mechanisms for participation, institutional purposes forthe benefit of the community, performance of regular activities to this end andthe level of formal boundaries of the community. Again here the evidence offeredby 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 and leadership which are mostly related to very generalinstitutional goals; however, the Objector does not offer specific criteria or
examples of such participation. The same is true of the institutional purpose
related to the benefit of the associated community. How such purported benefits
are to be achieved remains largely unexplained.
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 and otherrelevant 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: “The panel will perform abalancing of the factors listed above, as well as other relevant information, inmaking its determination. It is not expected that an objector must demonstratesatisfaction of each and every factor considered in order to satisfy the standing
requirements”. In spite of the best efforts to attain such a balanced consideration
the fact remains that the nature of the community in question does lend itself to14

serious doubts. The Expert thus concludes that the Objector’s standing also fails
in connection with the various 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 is someconnection 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 delineated community, thefirst on standing and the second on the merits, the essence of the 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 inconnection to the specific factor of a clearly delineated community appears to beless demanding in respect of standing than in respect 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 the various standards governing the merits of the Objection
before reaching a final determination on the arguments put forth by the Objector
in support of its Objection.

IV. THE SUBSTANTIVE STANDARDS GOVERNING THE MERITS OF THE
OBJECTION

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; and15• 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 underthe 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 ofmaterial damage posed by the Application. The Objector’s position on the otherthree tests is largely subsumed under the considerations made in connection withstanding 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. Amazon
is described as being by far the largest internet retailer with online sales
surpassing US$ 48 billion. Amazon and Apple have established a duopoly
amounting to 80% of the online music retail market.
46. The size, diversity and significance of “music” is reflected in the fact that thiskeyword is the most searched internet category with 226 million monthly Google
searches, to which other music-related keywords should be added to reachbillions of searches. Amazon’s music-themed string would be granted a powerfuldomain monopoly that would include many related keywords, including “tunes”.
The Objector refers in this context to the Application’s statement admitting amonopoly position in ecommerce. Artists and musicians would be unable toregister a .Tunes domain to legally compete 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
16

in .Music and the existence of a market in .Music domains. (The Expert mustnote that while the Objection refers in this context to “.Music”, in fact it ismaking an argument in respect of “.Tunes”).

47. The Objection maintains that the Application thus completely and diametricallycontradicts ICANN’s objectives to increase competition and other ICANN Core
Values, such as seeking informed participation. In the Objector’s view the
Applications made for .Music and .Songs only make the situation 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 harmto the legitimate interests of the music community, compounded by the fact 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 be further
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 would exclude other entities andpotential competitors from using the TLD. All such consequences would result inbreach of both United States and European Union anti-trust legislation andregulations.
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 formalboundaries of the community, the length of time it has been in existence, the17global distribution of the community and the number of people or entities thatbelong 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 with the relative
composition of the community.

52. It follows that it is not possible to ascertain either the representative nature of theentities expressing opposition, the level of recognized stature or weight amongsources of opposition, the distribution or diversity among the sources expressing
opposition, the historical defense of the community in other contexts or the costs
incurred in expressing opposition by means of other channels. The Applicant
notes that during the three-month period during which the public was invited tosubmit comments on gTLD applications no comments were received from the
Objector opposing the .Tunes Application. (The Expert again notes that while“music.com” is used in this context the argument made concerns “tunes”
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 public statement by the Applicant
reflecting a strong association with such community. Similarly no evidence of the
public having associated the Application to a targeting of the community inquestion 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 .Tunes registry is to create a
dedicated platform for Amazon which would provide additional controls of the18technical architecture of this domain, offering a stable and secure foundation for
online communication, as it would also provide a platform for innovation and theprotection of intellectual property rights, none of which relate to the existence ofa 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 or provide
evidence about any of the six factors listed under the Article, namely the natureand extent of the damage to the reputation of the community, that the Applicant
does not intend to act in accordance with the interests of the community,
interference with the core activities of the community, dependence of thecommunity on the Domain Name System (DNS) for its core activities, nature andextent of concrete or economic damage to the community, and level of certainty
that detrimental outcomes would occur.
56. The Applicant asserts that the Objector’s views that the Application will thwart
competition are unsupported and ignore many comments submitted to ICANN tothe contrary by a number of relevant institutions collected in Annex 14 of the
Response. These comments include those submitted by institutions, scholars and
ICANN’s At-Large Advisory Committee to the effect 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 such statements
are irrelevant, inaccurate or misleading. Registration of .Tunes domains by the
Applicant and related second level registrations would not result in any anticompetitive effects as experience with other kinds of registration shows.
Moreover, similar domain names, such as “music.com”, have been registered byentities other than the Objector apparently without creating any illegal monopoly
or causing any harm to the Objector. (The Expert again notes that while19

“music.com” is used in this context the argument made concerns “tunes”
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 the first factor
listed in Article 3.5.4 of the Guidebook. The conclusion on this point is notdifferent 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 acommunity. The Expert is mindful in this respect of the comments made byProfessor Alain Pellet in his role of the Independent Objector established for the
dispute resolution process under ICANN, which have been introduced in therecord by the Applicant as pertinent to this Objection. Under Article 3.2.5 of the
Guidebook the Independent Objector does not act on behalf of any particularpersons or entities, but acts solely in the best interests of the public who use theglobal Internet.

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 a clearlydelineated 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 of Applicant’s Responseto 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 a given
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 “Tunes” because of the number of entities thatwill use this term, but this is not conducive to the clear delineation envisaged
under this standard.
20

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 clearly delineated community arequite difficult to meet. The Applicant convincingly argues that the Objector has
failed to produce evidence on any such criteria, with reference to the publicrecognition of the group as a community, the formal boundaries of thecommunity 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 result of 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 composition of thecommunity, the representative nature of entities expressing opposition, the levelof recognized stature or weight among sources of opposition, the distribution or
diversity among sources of expressions of opposition, including regional,
subsectors, leadership and membership diversity, the historical defense of thecommunity in other contexts and the costs incurred by objector in expressing
opposition.
63. Whether the number of expressions of opposition relative to the composition of
the community can be measured in some way is difficult to establish as the
purported community itself is overly broad. With billions of users the expressionsof opposition would need to run in high numbers to meet this test. Further, as
noted in para. 33 above, the letters accompanying the Objection do not seem tobe overly representative of such community and some 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 also difficult tocompare because the description of such sources and the information supplied is21

not sufficiently detailed to draw a comparison. It is also quite evident that thissituation makes it impossible for the Objector to provide evidence about thedefense of the community in other contexts or to provide the description andcosts of other channels used to convey opposition.
65. The Expert must turn now to the issue of whether the Application has in some
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 to represent.
66. While an association exists of course between the gTLD applied for and the term
“tunes”, this is by definition a generic term that might relate to tunes in general
but not specifically to the “independent music community” the Objector claims torepresent. The Applicant has explained that the Application does not refer to sucha community at all nor are there other statements indicating a strong association
or statements that might have triggered an association by the public of suchtargeting. The extremely broad definitions of tunes that the Applicant sets out inAnnex 13 of its Response is enough to realize that none of those definitions lendthemselves to establish a strong association with the community in the present
case.
67. The last test on which the Expert must reach a determination is that concerning alikelihood of material detriment. The scope of the standard is quite precise on thismatter. Two distinct kinds of damage are considered in Article 3.5.4 of the
Guidebook, the first being the nature and extent of damage to the reputation of
the community, and the second the nature and extent of concrete or economic
damage to the community. In either kind of damage the Objector must prove thatthe application creates a likelihood of material detriment to the rights orlegitimate interests of a significant portion of 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 thecommunity, that there will be interference with the core activities of the22community and dependence of such community on the DNS for its core
activities. In the end the level of certainty that detrimental outcomes would occur
has to be established.

68. The Objector has not proved the likelihood of either kind of damage occurring asa result of the eventual approval of the Application. The Expert does not consider
that it is likely that the reputation of the community could in any way be affectedby this Application nor is the reputation of A2IM or any of its members at issue.
Whether there would be a likelihood of concrete or economic damage to thecommunity caused by the Application were it to succeed has not been establishedeither. While, as noted in paragraphs 22, 23 and 48 above, the Objector has
indicated figures concerning the market participation that could be affected andsome general estimate of the amounts potentially involved in damages, this does
not appear to be related to the interests 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 and scholarly
opinions submitted to the effect that closed domains and unified registration,
while entailing some restrictions, result rather in promoting online innovation andreduce 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 islikely 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 suchconsequence competition regulators will very well know how to address thisproblem, 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.

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71. It is thus not possible to conclude that there is in this case a likelihood of concreteor 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 thatthe use of, for example, “cars.com” has not resulted in any restriction ofcompetition in that market, as neither has the use of “music.com”, or“musician.com” (Applicant’s Response, p. 14). (The Expert here again notes thatreferences to “music” are made in the context of the argument concerning“tunes”).

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 the standing
requirements would have been met, which is not the case, the Objection fails on
the merits.

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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:
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
Expert25

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