THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/394/ICANN/11

THE INTERNATIONAL LESBIAN GAY BISEXUAL TRANS AND INTERSEXASSOCIATION(BELGIUM)
vs/UNITED TLD HOLDCO LTD.
(CAYMAN ISLANDS)

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.

EXP/394/ICANN/11

THE INTERNATIONAL LESBIAN GAY BISEXUAL TRANS AND INTERSEXASSOCIATION (BELGIUM)
vs.
UNITED TLD HOLDCO LTD. (CAYMAN ISLANDS)

Expert Determination

Objector
The International Lesbian Gay Bisexual Trans and Intersex Association
Mr. Renato Sabbadini
17 Rue de la Charité
1210 Brussels
Belgium
renato@ilga.org
Objector's Representative
International Gay & Lesbian Travel Association
Mr. Clark Massad
1201 NE 26th Street, Suite 103
Fort Lauderdale, Florida 33505
USA
icann@iglta.org
ApplicantUnited TLD Holdco Ltd.
Mr. Jeffrey Eckhaus
Ugland House, South Church Street
George Town, KY1-11-4
Cayman Islands
hello@unitedltl.com
Applicant's Representative
Greenberg Traurig, LLP
Mr. Ian C. Ballon, Ms. Wendy M. Mantell, Mr. Justin A. Barton
1840 Century Park E, Suite 1900
Los Angeles, California 90067
USA
ballon@gtlaw.com, mantellw@gtlaw.com, bartonju@gtlaw.com
Expert Panel
Professor Dr. Bernhard Schlink
Humboldt-Universität zu Berlin, Juristische Fakultät
Unter den Linden 6
10099 Berlin
Germany
bernhard.schlink@rz.hu-berlin.de2

Table of Contents
Procedure4

Summary of Parties' Positions

4

Findings

6

Decision

103Procedure
1. On 12 March 2013, The International Lesbian Gay Bisexual Trans and Intersex Association("ILGA"), represented by the International Gay & Lesbian Travel Association ("IGLTA"),
filed a Community Objection against the application by United TLD Holdco Ltd. ("United
TLD") for the string .gay. On 22 May 2013, United TLD filed its response. On 7 June 2013, I,
Professor Dr. Bernhard Schlink, was appointed by the Chairman of the Standing Committeeof the International Centre for Expertise ("Centre") of the International Chamber ofCommerce ("ICC") as Expert in this matter.
2. On 15 July 2013, the Centre confirmed the full constitution of the Expert Panel, transferred
the file to me and invited me to proceed with this matter. On 2 August 2013, I informed theparties that I had received the file and did not intend to invite additional submissions and did
not consider holding a hearing. The parties did not submit any further submissions orstatements nor did they request to be granted leave to submit additional submissions.
3. I proceeded with this matter in accordance with the Rules for Expertise of the ICC("Rules"), supplemented by the ICC Practice Note on the Administration of Cases ("ICC
Practice Note") under the Attachment to Module 3 of the gTLD Applicant Guidebook, New
gTLD Dispute Resolution Procedure ("Procedure") of the gTLD Applicant Guidebook("Guidebook") and Appendix III to the Rules.
4. The language of all submissions was English. All communications by the parties, theExpert Panel and the Centre were submitted electronically (Article 6(a) of the Procedure).
5. The draft Expert Determination was rendered to the Centre on 13 August 2013, i.e. within
45 days after receipt of the file transmitted by the Centre on 15 July 2013.
Summary of Parties' Positions
Objector's Position
6. ILGA presents itself as an established institution that has an ongoing relationship with theclearly delineated gay community, which ILGA writes capitalized as Gay Community. To
demonstrate that it is an established institution that has an ongoing relationship with the gay
community, ILGA documents that it is the only worldwide federation of more than 1000
lesbian, gay, bisexual, transgender and intersex national and local organizations in over 100
nations and on all five continents; that it has existed since 1978; that every two years it holds
a world conference; that its many activities and particularly its fight against state-sponsoredhomophobia are covered in annual reports; and that it enjoys consultative status with the
Economic and Social Council of the United Nations. To demonstrate that the gay community
is a clearly delineated community, ILGA describes how a sense of community emerged
among gay individuals in the early 20th century; how the Stonewall events in New York in
1969 triggered gay individuals around the world to experience themselves as part of acommunity; how since then more and more gay organizations sprout and provide the gay
community with a network of cooperation, support, and services; and how the annual gay
pride march demonstrates the unity, vitality, and strength of the gay community, which4includes all individuals whose gender identities and sexual orientations fall outside of thesocietal norms for heterosexual behavior.
7. ILGA claims substantial opposition from a significant part of the gay community to which
the string .gay may be targeted. It describes how the gay community came to understand thatit needs a voice inside the new generic top-level domain ("gTLD") program, how it took thelead on the community application by dotgay llc ("dotgay") for the string .gay, how thisapplication has the support from ILGA and more than 150 gay community organizations, andthat these same organizations also object to the application by United TLD for the string .gay.
8. ILGA argues that United TLD's operation of the string .gay would damage the gay
community. According to ILGA, United TLD does not recognize the gay community, denies
its identity and renders it to a commodity among other commodities to be bought and sold. To
operate a string .gay while denying the identity of the gay community would be a harmful act
in and of itself. Furthermore, the operation of the string .gay would usurp and exploit thename of the gay community, which these days includes lesbian, gay, bisexual, trans, queer,intersex people and allies. Taking a group's name and using it to create a profitable businessshould be regarded as exploitation, unless it is done for and endorsed by the community itself.
United TLD would use the string .gay to generate profits that would not benefit thecommunity. Its operation of the string .gay would make this gTLD available to all registrants
for any purpose and any use with no restriction, thereby allowing for abuses of the domainname that might cause the gay community harm, for example from registrants masquerading
as members of the community who in fact were anti-gay activists intending to use theregistration for anti-gay purposes.
9. ILGA sees a major damage in the loss of opportunities for the gay community with theoperation of the string .gay by United TLD. The operation of the string .gay under a non-gay
community leadership and responsibility, and solely for profit, would not give the gay
community the safety that it could enjoy from a gTLD under gay community leadership andresponsibility. Registrants of the string .gay could not rely on other registrants being reliably
gay, and people who approach registrants of the string .gay could not rely upon finding
trustworthy gay businesses and enterprises, gay community programs and services. In
addition, the operation of the string .gay under a non-gay community leadership andresponsibility and solely for profit would not allow the gay community to assemble the funds
and resources that it needs to support its programs and services.
10. In its objection, ILGA requests that United TLD "be forced to withdraw its application".
Pursuant to Article 21 (d) of the Procedure, the Panel in its Expert Determination decides
whether an objection is successful or dismissed; it cannot force an applicant to withdraw its
application. Thus, ILGA's request that United TLD be forced to withdraw its application does
not fall into the scope of the present proceedings.
Applicant's Position
11. United TLD challenges ILGA's standing. It claims that there is no such thing as a gay
community and that what is called the gay community cannot be regarded as a clearlydelineated community, because it is too diverse, too much in flux, and lacks a single ideology.
In any case, according to United TLD, the so-called gay community is too diverse to be
represented by ILGA or any other organization or set of organizations.

512. United TLD further argues that there is no substantial opposition from a significant part ofthe so-called gay community against its application. It points to the fact that there is noevidence that the members of the so-called gay community who are not organized in or
around ILGA object United TLD's application.
13. United TLD finally denies the material detriment to the legitimate interest of the gay
community that ILGA sees likely to arise from United TLD's operation of the string .gay. By
operating an open gTLD without restrictions, boundaries, and limitations, United TLD would
not only embrace the people who identify with the term gay, but would allow all people whowish to interact under the gTLD name gay to do so. United TLD claims that its operationof .gay would not allow for more discrimination or more expression of abusive, hateful, andharmful views than already exist. As to the funds and resources that ILGA wants to raisethrough dotgay's operation of the string .gay to support programs and services of the gay
community, United TLD argues that ILGA is not entitled to them. Finally United TLD
criticizes ILGA's objection as anti-competitive, because if the string .gay were operated by
dotgay rather than United TLD, fewer people could register under it.
Findings
14. Based on the submissions of the parties, ILGA has standing. To have standing the objector
has to be an established institution associated with a clearly delineated community (Module
3.2.2.4 of the Guidebook), i.e. with a group that is publicly recognized as a community at a
local and/or global level and has formal boundaries that enable a determination of what
persons or entities form the community (Module 3.5.4 of the Guidebook, first test). The gay
community is a clearly delineated community. It is publicly recognized as such in thelanguage of the media, scholarship, and common usage, formed by millions of individuals
whose gender identities and sexual orientations are outside of the societal norms forheterosexual behavior and who, whether they are more or whether they are less organized,
share the awareness of their special status. During the last century, the gay community has
grown out of individuals with that special awareness into a community in its own right and is
now a worldwide presence. That this community is diverse, in flux, and in lack of a single
ideology does not deprive it of being a community; communities are living entities.
15. ILGA is a globally recognized institution, existing since 1978, organized around the causeof the gay community, fighting for the freedom to live and express one's gender identity andsexual orientation outside of the societal norms for heterosexual behavior without any
discrimination. ILGA does not claim to represent the gay community in each and every
context and respect and is not required to do so; all that Module 3.2.2.4 of the Guidebook asks
for is that it has an ongoing relationship with the gay community. This, ILGA has certainly
demonstrated. ILGA existed much prior to the new gTLD proceedings and its purpose is far
broader than merely taking the role of objector in the present proceedings.
16. ILGA has also proven substantial opposition against United TLD's application for thestring .gay (Module 3.5.4 of the Guidebook, second test). It has named more than 150 gay
community organizations that support the community application by dotgay for the string .gay
and also object to the application by United TLD for the string .gay. That there are gay people
and gay organizations that do not object is irrelevant; Module 3.5.4 of the Guidebook does not
ask for comprehensive opposition of the community but only for substantial opposition within
the community. The strong association between the the string .gay and the gay communitythat ILGA represents (Module 3.5.4 of the Guidebok, third test) is obvious.
617. For an objection to be successful, the objector has to prove that the application creates alikelihood 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; Module 3.5.4 of
the Guidebook, fourth test, mentions as detrimental in particular damage to the reputation of
the community, a failure of the applicant to act in accordance with the interests of thecommunity, interference with the core activities of the community, impairment of thecommunity's dependency on the Domain Name System ("DNS") for its core activities, andeconomic damage to the community.
18. ILGA has not proven that United TLD's application creates a likelihood of material
detriment to a significant portion of the gay community, nor has ILGA attempted to prove this.
Instead, ILGA has attempted to prove a likelihood of material detriment to the legitimate
interests of the gay community. To prove this, it would have been sufficient to prove thelikelihood of damage to the reputation of the community, of a failure of the applicant to act inaccordance with the interests of the community, of interference with the core activities of thecommunity, of impairment of the community's dependency on the Domain Name System("DNS") for its core activities, or of economic damage to the community (Module 3.5.4 of the
Guidebook, fourth test). ILGA has argued that the gay community needs a gTLD, that isdesigned to serve the gay community and to operate accordingly. It should be a safe domain
where registrants and users can rely on the fact that other registrants who present themselves
as gay and as providers of programs, services, funds, and support for gay people are actually
gay and trustworthy. The gTLD should be safeguarded against anti-gay registrants who want
to use it as a tool for discrimination gainst the gay community. Furthermore the gTLD should
not be operated only for profit, not even foremost for profit, but with the purpose of giving afair share of the revenue back to the gay community for its needs and activities. To avoid
these likely usurpations and exploitations the gTLD should be administered by gay
community itself.
19. With these submissions ILGA has not proven an interference with the gay community's
core activities or an economic damage to the gay community that would result from United
TLD's operation of the string .gay. Nor has ILGA proven that United TLD would not act inaccordance with the interests of the community; all that is clear from ILGA's and also United
TLD's assertions is that United TLD would not feel a particular responsibility towards thecommunity but rather treat it and its members like any other user.
20. What ILGA has shown is that over the last century and particularly over the last decades
the gay community has turned the name gay from a derogatory term into a respected name.
Even though the name gay is not a legally protected name of the gay community, ILGA'sconcern, that the usurpation and exploitation of this name for naked profit making mightmake the gay community look like a community of customers and consumers rather than acommunity of people with a special identity and special concerns, may be understandable.
But this feared adverse affect on the gay community's appearance would be far from adamage to thereputation of the gay community. In our capitalist world, each and every nameis being used for profit making, and everybody is being targeted as a customer and consumer.
The reputation of individuals and communities grows out of their qualities, engagements, andactivities that transcend the level of profit making and being a customer and consumer.
21. ILGA has certainly demonstrated that the gay community depends on the DNS for its core
activities. Within the DNS it depends on its own gTLD. United TLD's operation of thestring .gay would not impair the gay community's core activities or economic situation or7even reputation. But since the string .gay, operated by United TLD, and the string .gay,
operated by dotgay, can not exist simultaneously, United TLD's operation of the string .gay
would keep the gay community from promoting its core activities, improving its economic
situation, and also enhancing its reputation by operationg its own string .gay. It would also
keep the gay community from operating its own string .gay with special mindfulness for thegay community's needs and interests. The interference that can be found in this is aninterference less with what the gay community has than with what the gay community wants– its own gTLD. If United TLD would operate the string .gay, the gay community would be
deprived of the chance to operate its own string .gay and to make manifold use of it.
22. The detriment that the gay community is threatened by is the loss of the chance to operate
its own string .gay. Supported by ILGA and more than 150 gay organizations, dotgay filed acommunity application for the string .gay. If United TLD, rather than the gay community
represented by ILGA as the objector and dotgay as the applicant, were granted the string .gay,
the gay community would lose the chance to operate its own string .gay. This loss of thechance to operate its own string .gay might be regarded as a detriment to the legitimate
interests of the gay community. But Module 3.5.4 of the Guidebook clarifies that thisdetriment alone is not sufficient for ILGA's objection to be successful.
23. Module 3.5.4 of the Guidebook states that "an allegation of detriment that consists only of
the applicant being delegated the string instead of the objector will not be sufficient for afinding of material detriment". This cannot be taken literally as referring to a situation inwhich the objector's one and only argument is that it, in its role as applicant, should get thestring rather than the other applicant; no objector would argue in such a reductionist way. It
can only refer to a situation in which the objector argues that the community involved would
be better served if its application were succesful and it got the string rather than the otherapplicant. The logic behind the quoted Module 3.5.4 of the Guidebook is that the Guidebook
stipulates a different procedure for the contention between two applicants, one a communitybased applicant, the other a standard applicant, and the decision on whether the communitybased applicant will serve the community involved well enough to win against the standard
applicant. That procedure is the Community Priority Evaluation Procedure of Module 4.2.2 of
the Guidebook.
24. The objector that the above quote of Module 3.5.4 of the Guidebook deals with is anapplicant himself. But, again, this must not be taken literally as meaning that the objector andthe applicant have to be one and the same institution. The institutions must not be identical as
long as the interests and the community involved are.
25. This is confirmed by Module 3.2.2.4 of the Guidebook, which gives standing for a
Community Objection only to an institution that has "not been established solely in
conjunction with the gTLD application process". Because the possibility of applying for a
new gTLD is new, and the operation of a new gTLD is a technically and logistically advanced
and sophisticated business, for an established institution that represents an establishedcommunity, the obvious choice is not to take on the task of operating this business itself but
rather to delegate it to a new, technically and logistically properly equipped institution. In thissituation, Module 3.5.4 of the Guidebook, if taken literally as requiring objector and applicant
to be one and the same institution, would become irrelevant: the new institution, as applicant,could not object under Module 3.2.2.4 of the Guidebook and the old institution that could
object, not being the applicant, could not argue that the community involved would be better
served if its application were successful and it got the string rather than the other applicant.
But Module 3.2.2.4 of the Guidebook is meant to become relevant and to steer the contention
8

between two applicants, one a community-based applicant, the other a standard applicant, andthe decision on whether the community-based applicant will serve the community involved
well enough to win to the Community Priority Evaluation Procedure of Module 4.2.2 of the
Guidebook.
26. So for Module 3.5.4 of the Guidebook, the objector, the established institution, and theapplicant, the new institution, are to be treated as one entity under the following conditions:
The objector and the applicant are intrinsically linked because they serve the same community,
share the same interests, cooperate closely, and practice a division of labor under which theobjection comes from the established institution that has established ties to the communityand knows and represents its interests plausibly and competently, while the application comesfrom the new institution charged with applying for a new gTDL and running it on behalf ofthe community.
27. In this case, if the arguments that the objector brings forward under the Community
Objection Procedure of Module 3.5.4 of the Guidebook are the same that matter in theCommunity Priority Evaluation Procedure of Module 4.2.2 of the Guidebook, then they haveto be dealt with under the latter procedure, and therefore cannot be regarded as material
detriment under the Community Objection Procedure of Module 3.5.4 of the Guidebook.
28. ILGA and dotgay are not one and the same institution, but they are instrinsically linked.
As described in ILGA's objection, the gay community, of which ILGA is the establishedrepresentative, took leadership of the community application by dotgay, and dotgay advised,supported, and organized ILGA's community objection. ILGA, the established institution, anddotgay, the new institution, practice a division of labor under which they serve the gay
community and pursue the same interests optimally.
29. ILGA argues that the gay community would be better served if dotgay's application weresuccessful and dotgay got the string rather than United TLD. It emphasizes the history,
vitality, and strength of the gay community and how it is clearly defined and richly organized;
the nexus between the string .gay and the gay community; the registration policies underwhich dotgay would operate the string .gay in the interest of the gay community; and the gay
community's support for the operation of the string .gay by dotgay. These are the argumentsthat matter in the Community Priority Evaluation Procedure of Module 4.2.2 of the
Guidebook.
30. The interplay between the Community Objection Procedure of Module 3.2.2.4 of the
Guidebook and the Community Priority Evaluation Procedure of Module 4.2.2 of the
Guidebook is intricate. The contention between two applicants, one a community-based
applicant, the other a standard applicant, and the decision on whether the community-based
applicant will serve the community involved well enough to win against the standard
applicant, belong into the Community Priority Evaluation Procedure of Module 4.2.2 of the
Guidebook. If the community involved could exclude the other applicant by using theCommunity Objection Procedure of Module 3.2.2.4 of the Guidebook, presenting anestablished institution as an objector, and presenting arguments that were not sufficient to win
in the Community Priority Evaluation Procedure of Module 4.2.2 of the Guidebook, thisprocedure would be voided and kept from serving the purpose for which it is created.
31. One might consider dealing with the intricate interplay between the two procedures byrequiring that the likelihood of material detriment to the legitimate interests of the community
under Module 3.5.4 of the Guidebook were proven in a manner that would also fulfill the9criteria of the Community Priority Evaluation Procedure of Module 4.2.2 of the Guidebook
and, if that proof succeeded, allow the objection to prevail. The arguments that ILGA presents
offer enough material to suggest that such criteria might well be fulfilled. But the Guidebook
stipulates the Community Priority Evaluation as a different procedure before a different panel.
This has to be respected.
32. So while the lost chance of operating its own string .gay, caused by United TLD being
delegated the string .gay, might be regarded as a detriment to the legitimate interests of thegay community, under Module 3.5.4 of the Guidebook this detriment is not sufficient for afinding of material detriment and for ILGA's objection to be successful.
Decision
For all the above reasons and according to Article 21 (d) of the Procedure, I hereby render thefollowing Expert Determination:
1. ILGA's objection fails and is dismissed.
2. The Applicant United TLD prevails.
3. United TLD's advance payment of costs shall be refunded by the Centre to United TLD.
16 November 2013

Prof. Dr. Bernhard Schlink, Expert

10