THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/436/ICANN/53

ENTERTAINMENT SOFTWARE ASSOCIATION
(USA)
vs/
AMAZON EU S.Á.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.

TABLE OF CONTENTS
I. The Parties ........................................................................................................ 1
A. Objector .................................................................................................. 1
B. Applicant ................................................................................................. 1
II. The Expert ....................................................................................................... 2
III. Summary of the Procedural History ................................................................. 2
IV. Procedural Issues and Applicable Rules ......................................................... 5
V. Summary of the Parties’ Positions ................................................................... 6
A. Objector’s Position .................................................................................. 6
B. Applicant’s Position ................................................................................. 7
VI. Findings of the Expert ..................................................................................... 8
A. Objector’s Standing ................................................................................ 9
B. The “Video Game Publishing Community” ............................................ 15
C. The “Substantial Opposition” to the application ..................................... 19
D. Targeting .............................................................................................. 22
E. Detriment .............................................................................................. 25
VII. Conclusion ................................................................................................... 29
VIII. Decision ...................................................................................................... 29

TABLE OF ABBREVIATIONSApplicantAmazon EU S.á.r.l

CentreThe International Centre for Expertise of the International Chamber of Commerce

Disputed TLD“.game”

DRSP

Dispute Resolution Service Provider

ESAC

Entertainment Software Association of Canada

Expert

The Expert as defined in Section II of this Expert
Determination

GNSO

ICANN Generic Names Supporting Organization

gTLD

generic Top-Level Domain

ICANN

The Internet Corporation for Assigned Names andNumbers

ICANN Guidebook

Module 3 of the ICANN’s gTLD Applicant Guidebook, version dated June 4, 2012.

ICC

The International Chamber of Commerce

ICC Practice Note

ICC Practice Note on the Administration of Cases

ICC Rules for Expertise

The Rules for Expertise of the International Chamberof Commerce in force as from January 1st, 2003

iGEA

Interactive Games and Entertainment Association

ISFE

Interactive Software Federation of Europe

Objector

Entertainment Software Association

Parties

Amazon EU S.á.r.l and Entertainment Software Association

Rules of Procedure

The ICANN’s Attachment to Module 3 – New gTLD
Dispute Resolution Procedure

Third Party Objectors

ESAC, ISFE and iGEA

-1-

EXPERT DETERMINATION
1. In accordance with Article 21 of the New gTLD Dispute Resolution Procedure(“Rules of Procedure”), the appointed expert (the “Expert”) renders this Expert
Determination.
I. The Parties
A. Objector
2. Objector in these proceedings is ENTERTAINMENT SOFTWAREASSOCIATION (“ESA” or “Objector”), an association established according to thelaws of United States of America, domiciled at:
575 7th Street, NW, Suite 300
Washington, D.C. 20004
United States of America
Contact person: Mr. Christian Genetski
cgenetski@theesa.com
3. In these proceedings, Objector is represented by:Mark V.B. Partridge
Partridge IP Law P.C.
161 North Clark Street, Suite 4700
Chicago, Illinois, 60601
United States of America
Tel.: +1 312-634-9500
E-mail:mark@partridgeiplaw.com
4. Notifications and communications arising in the course of these proceedings
were made to the Counsel’s aforementioned e-mail address.
B. Applicant
5. Applicant in these proceedings is AMAZON EU S.À.R.L.(“Amazon” or “Applicant”), a company established according to the laws of Luxembourg, domiciled at:
5 rue Plaetis
Luxembourg, L-2338, LU
Luxembourg
Contact person: Ms. Lorna Jean Gradden
E-mail:lorna.gradden.am1@valideus.com
6. In these proceedings, Applicant is represented by:

-2-

Douglas M. Isenberg, Esq.
The GigaLaw Firm
5555 Glenridge Connector, Suite 200
Atlanta, Georgia 30342
United States of America
Tel.: +1 404348-0368
E-mail: disenberg@GigaLawFirm.com
7. Notifications and communications arising in the course of these proceedings
were made to the Counsel’s aforementioned e-mail addresses.
II. The Expert
8. On June 14, 2013, the Chairman of the Standing Committee of the International
Centre for Expertise of the International Chamber of Commerce (the “Centre”)
appointed Prof. Dr. Guido Santiago Tawil as Expert in accordance with Article 7 of
the Rules for Expertise of the International Chamber of Commerce in force as
from January 1st, 2003 (the “ICC Rules for Expertise”) and Article 3(3) of Appendix
I to the ICC Rules for Expertise. The Expert contact details are:Prof. Dr. Guido Santiago Tawil
M. & M. Bomchil
Suipacha 268, piso 12
C1008AAF City of Buenos Aires
Argentina
Tel.: + 5411 4321 7500
Fax: + 5411 4321 7555
E-mail: guido.tawil@bomchil.com
9. Managers of the Centre who are in charge of the file are:Hannah Tümpel (Manager)Špela Kosak (Deputy Manager)
ICC International Centre for Expertise33-43, avenue du Président Wilson
75116 Paris
FranceTel.: +33 1 49 53 30 52
Fax: +33 1 49 53 3049
E-mail: expertise@iccwbo.org
III. Summary of the Procedural History
10. On March 13, 2013, ESA filed an Objection pursuant to Module 3 of ICANN’s
gTLD Applicant Guidebook, version dated June 4, 2012 (“ICANN Guidebook”),
the ICANN’s Attachment to Module 3 – New gTLD Dispute Resolution Procedure(“Rules of Procedure”) and the Rules for Expertise of the International Chamber of-3-

Commerce in force as from January 1st, 2003 (“ICC Rules for Expertise”) supplemented by the ICC Practice Note on the Administration of Cases (“ICC PracticeNote”).
11. On March 16, 2013, the Centre acknowledged receipt of the Objection andconducted the administrative review of it in accordance with Article 9 of the Rulesof Procedure for the purpose of verifying compliance with the requirements set
forth in Articles 5 to 8 of the Rules of Procedure.
12. On April 3, 2013, the Centre informed the Parties that the Objection was incompliance with Articles 5 to 8 of the Rules of Procedure. Accordingly, the Objection was registered for processing.
13. On April 15, 2013, the Internet Corporation for Assigned Names and Numbers(“ICANN”) published its Dispute Announcement pursuant to Article 10(a) of theRules of Procedure.
14. On the same date, the Centre informed the Parties that it was considering theconsolidation of the present case with the case No. EXP/437/ICANN/54 (Entertainment Software Association v. Beijing Gamease Age Digital Technology Co.,
Ltd.; gTLD: “.game”) in accordance with Article 12 of the Rules of Procedure.
Therefore, the Centre invited the Parties to provide their comments regarding thepossible consolidation no later than April 17, 2013.
15. On April 16, 2013, Applicant filed its comments on the possible consolidationby e-mail, a copy of which was sent directly to Objector.
16. On April 22, 2013, the Centre informed the Parties that it decided not to proceed with the consolidation. It further invited Applicant to file a Response to the
Objection within 30 days of the Centre’s transmission of such letter in accordancewith Article 11(b) of the Rules of Procedure.
17. On May 18, 2013, Amazon filed its Response to ESA’s Objection.
18. On May 24, 2013, the Centre acknowledged receipt of Applicant’s Response.
It further informed the Parties that the Response was in compliance with theRules of Procedure.
19. On June 21, 2013, the Centre informed the Parties that on June 14, 2013 theChairman of the Standing Committee of the Centre had appointed Prof. Dr. Guido
Santiago Tawil as expert in accordance with Article 9(5)(d) of the Rules for Expertise. It further sent the Parties the expert’s curriculum vitae as well as his Declaration of Acceptance and Availability, Statement of Impartiality and Independence.
20. On July16, 2013, the Centre informed the Parties that the estimated costs had
been paid in full by each party and confirmed the constitution of the expert panel.
21. On the same day, the electronic file was transferred by the Centre to the Ex-

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pert.
22. On July 17, 2013, the Expert issued Communication E-1 by means of which
he informed the Parties that (i) based on their submissions and pursuant to Article
12(1) of the ICC Rules of Expertise, he would circulate to the Parties for theircomments a first draft of the Expert’s Mission and (ii) at that stage, he did notconsider necessary to request the Parties to submit any written statement in addition to the Objection and the Response, including their respective exhibits.
23. By e-mails dated July 21 and July 22, 2013, the Parties jointly requested astay in these proceedings for thirty (30) days in order to engage in negotiations
aimed at settling the dispute amicably based on the Centre’s letter dated July 16,
2013, as well as Article 16 (d) of the Rules of Procedure.
24. On July 23, 2013, the Expert issued Communication E-2 by means of which it
informed the Parties that (i) based on their request and pursuant to Articles 16(d)and 21(a) of the Rules of Procedure it granted the suspension of the proceedingsfor 10 (ten) days (i.e.: until Friday August 2, 2013), and (ii) requested the Parties
to report by August 2, 2013, on the negotiation’s progress.
25. By e-mails dated August 2, 2013, the Parties informed the Expert that they
had been unable to resolve this dispute before expiration of the 10-day stay
granted by the Expert on July 23, 2013. Further, they jointly requested a new stayof these proceedings for thirty (30) days based on a recent resolution fromICANN’s New gTLD Program Committee.
26. On August 5, 2013, the Expert issued Communication E-3 through which it
informed the Parties that the new resolution adopted by ICANN’s New gTLD Program Committee constituted an “exceptional circumstance” under Article 16(d) of
the Rules of Procedure which justified staying these proceedings. Therefore,
based on the Parties’ joint request and pursuant to Article 16(d) of the Rules ofProcedure, the Expert granted the stay of the proceedings for thirty (30) days (i.e.:
until September 1, 2013).
27. By e-mails dated August 30, 2013, the Parties jointly requested a new stay ofthese proceedings for thirty (30) additional days based on an ICANN’s gTLD Program Committee recent resolution and taking into account its upcoming September meeting.
28. By means of Communication E-4, on September 2, 2013, the Expert granted
the new stay of the proceedings for thirty (30) additional days (i.e.: until October 1,2013).
29. By e-mails dated September 30 and October 1, 2013 the Parties jointly requested a new suspension of the proceedings in order to move forward with theirsettlement discussions and provided the explanations requested by the Expert inhis mail of September 30, 2013.

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30. On October 2, 2013, the Expert issued Communication E-5 by means ofwhich he granted a fourth suspension of these proceedings for thirty (30) additional days (until November 1, 2013) and requested the Parties to report by October 21, 2013 on the negotiations progress. He further noted that the proceedings
had been stayed for several months (Communications E-2, E-3 and E-4) and that,absent extraordinary circumstances, he would find extremely difficult to grant further suspensions.
31. On October 21, 2013, Applicant informed the Expert that (i) on October 4,2013 the Parties had entered into a non-disclosure agreement to enable further
discussion on relevant matters; (ii) on October 15 the Parties had a substantive
telephone conversation about the proceeding; and (iii) on that same date, October
21, 2013, the Parties had exchanged a written request regarding the proceeding.
32. In the Expert’s view, no further submissions are required from the Parties inorder to render his Expert Determination.
33. No hearing was held in these proceedings as it was neither requested by theParties nor proposed by the Expert.
34. In accordance with point 6 of the ICC Practice Note on the Administration ofCases (“ICC Practice Note”), by accepting the process as defined in Article 1(d) of
the Rules of Procedure, the Parties are deemed to have waived the requirements
for the Expert Mission as set out in Article 12(1) of the ICC Rules for Expertise.
35. Article 21(a) of the Rules of Procedure provides that the Centre and the Expert shall make reasonable efforts to ensure that the Expert renders his decision
within 45 days of the “constitution of the Panel”. The Centre considers that thePanel is constituted when the expert is appointed, the parties have paid their respective advances on costs in full and the file is transmitted to the expert. In thiscase, the Panel was constituted on July 16, 2013 (i.e., the date on which the file
was transmitted to the Expert). The Centre and the Expert were accordingly tomake reasonable efforts to ensure that his determination was rendered no later
than August 30, 2013 (as calculated in accordance with articles 6(e) and 6(f) of
the Rules of Procedure), bearing in mind, however, that the case was suspended
on several occasions as indicated above. Pursuant to article 21(b) of the Rules ofProcedure, the Expert submitted his determination in draft form to the Centre forscrutiny as to form before it was signed.
IV. Procedural Issues and Applicable Rules
36. Entertainment Software Association filed a “Community Objection”, defined as“substantial opposition to the gTLD application from a significant portion of thecommunity to which the gTLD string may be explicitly or implicitly targeted” according to section 3.2.1 of the ICANN Guidebook, against Amazon EU S.á.r.l application concerning the gTLD “.game”.
37. Pursuant to Article 5(a) of the Rules of Procedure, all submissions –including

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this Expert Determination– have been made in English. Further, all submissions
and communications between the Parties, the Expert and the Centre were filed
electronically as stated in Article 6(a) of the Rules of Procedure.
38. In accordance with Article 4(d) of the Rules of Procedure, the seat of theseproceedings is the location of the Centre in Paris, France.
39. For the purpose of rendering this Expert Determination, the applicable rules
are: the ICC Rules for Expertise, supplemented by the ICC Practice Note, theICANN Guidebook and the Rules of Procedure, mentioned in paragraph 10.
V. Summary of the Parties’ Positions
40. The issues to be addressed by the Expert shall be those resulting from theParties’ submissions and those which the Expert considers to be relevant to makea determination on the Parties’ respective positions.
41. Based on the Parties’ written submissions (Entertainment Software Association’s Objection, Amazon EU S.á.r.l’s Response and their respective exhibits), themain issues and claims under determination can be summarised as follows.
A. Objector’s Position
42. ESA claims that it has standing to object to applications for the gTLD “.game”
on the grounds that it represents the business and public affairs needs of companies in the video game industry1, which have been impacted by such gTLD application. Further, Objector states that (i) ESA was founded in 1996 and has currently 36 members2; (ii) ESA owns and operates a website that has been active forover ten years; and (iii) ESA owns and organizes the E3 trade show, the world’s
premier trade show for computer and video games and related products.3
43. Regarding the description of the basis for the Community Objection as established in section 3.3.1 of the ICANN Guidebook, ESA claims that –along with
ESAC, ISFE and iGEA (jointly “Third Party Objectors”)4– they represent many of
the world’s leading entertainment software and online game publishers, whose
games account for a majority of the game software sold around the world.5
44. According to ESA, the Disputed TLD is both targeted explicitly and implicitly to1

According to Objector, “ESA represents its industry in Washington, across the nation and aroundthe world, protecting the industry’s legal rights and legislative interests”. See: Objection, page 4.
2
According to Objector, “Including the three major video game console makers and most of theworld’s most prominent video game publishers”. See: Objection, page 4 and Annex A to Objection.
3
See: Objection, page 4 and Annex B to Objection.
4
According to Objector, this objection has third party support from the Entertainment Software Association of Canada (“ESAC”), the Interactive Software Federation of Europe (“ISFE”) and the Interactive Games and Entertainment Association (“iGEA”). See: Objection, page 5.
5
See: Objection, page 5.

-7-

the businesses and consumers in the video game industry, including Objector’s
members and their customers.6
45. In light of this statement, Objector argues that there is substantial opposition
to the Disputed TLD Application from a significant portion of the community towhich the TLD may be targeted, including the international membership of Objector’s association and of Third Party Objectors, as well as the communities represented by the other persons and entities that specifically oppose the Applicationor generally oppose the delegation of closed generic TLDs for a market sector.7
46. Finally, Objector argues that Applicant submitted the Application for the .game
generic TLD with an intent to administer it in closed or highly-restricted fashion.
Therefore, according to Objector, “it would be improper to grant the Application
because doing so will threaten to severely hamper competition and consumer
choice, particularly in this case where the Applicant seeks to obtain exclusive protection for a generic industry term in conflict with well-established international
principles”8as well as ICANN’s stated policy and goals.
47. Based on these allegations, Objector requests that the application for .game
filed by Amazon be declined with an appropriate refund, or alternatively, requirethat the .game TLD operate as an open registry.9
B. Applicant’s Position
48. Applicant rejects ESA’s Objection. From the outset of its Response, Applicant
alleges that Objector lacks standing because it “has failed to prove all of the four
tests required for a community objection, as set forth in subsection 3.2.2.4 of the
Guidebook”.10It further alleges that, contrary to the basis of the objection11, singleregistrant gTLDs are permitted under ICANN’s gTLD process. Therefore, according to Applicant, Objector should address the issue with ICANN in future rounds
for GTLD applications and not with the Expert.12
49. In addition, Amazon alleges that ESA has no standing to object on the groundthat it fails to prove the existence of any of the six ICANN Guidebook factors todetermine that it is “an established institution” with “an ongoing relationship” with aclearly delineated community.13

6

See: Objection, page 6.
See: Objection, page 14.
8
See: Objection, page 6.
9
See: Objection, page 18.
10
See: Response, pages 4 to 6.
11
To the extent that Objector opposes the concept of single-registrant gTLDs.
12
See: Response, page 4. In particular, Applicant claims that the dispute resolution service provider’s mission is “to evaluate narrow criteria of a specific objection to a specific application –not tosecond-guess ICANN’s decision or established application requirements”.
13
See: Response, pages5 and 6.
7

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50. In relation to the “Community” argument, Applicant argues that Objector has
failed to prove that “the community expressing opposition can be regarded as aclearly delineated community” as required by the Guidebook14, nor has made any
specific reference to any of the relevant factors therein.
51. Further, Applicant rejects Objector’s argument that the substantial opposition
to the application comes from a significant portion of the video game Community.
Indeed, it is Applicant’s position that, although Objector provided a list of its members and letters of support from Third Party Objectors, it is impossible to determine how substantial the opposition is relative to the community because there isno information as to the size of the community. Furthermore, Amazon argues thatmany of the world’s leading video game companies are not members of ESA andhave not expressed any opposition to the application.15
52. In any event, Applicant states that “there is not a strong association between
the “Community” represented by Objector and the applied for “.game” TLD” string
because (i) the Objection does not contain evidence of any associations by the
public that the applied-for gTLD targets the community represented by Objectorand (ii) the Application does not make reference to the phrase “video game”.16
53. Finally, concerning the material “detriment” to the rights and legitimate interests of the Community, Applicant argues that Objector failed to prove a likelihoodof material detriment. It further states that Objector’s argument that the Application would threaten to hamper competition and consumer choice is unsupported,
speculative and ignores comments submitted to ICANN in support of “singleregistrant” operations.17
54. Based on these arguments, Amazon requests the Expert to deny the Objection.
VI. Findings of the Expert
55. Having reviewed and considered the Parties’ positions expressed in their written pleadings and exhibits submitted in these proceedings, in order to make its
determination the following issues need to be addressed by the Expert in accordance with the criteria listed in the ICANN Guidebook:(1) Does ESA have standing to put forward a Community Objection against theapplication made by Amazon?
14

See: Response, page 6. In particular, it is Applicant’s position that Objector does not meet thefollowing factors: (i) level of public recognition of the group as a community at a local and/or global
level, (ii) level of formal boundaries around the community, (iii) length of time the community has
been in existence and (iv) number of people or entities that make up such community.
15
See: Response, page 8.
16
See: Response, page 9.
17
See: Response, page 11.

-9-(2) Is the “Video Game Publishing Community” clearly delineated?
(3) Is there a substantial opposition to the application “.game” gTLD on behalf of asignificant part of the “Video Game Publishing Community”?
(4) Is the “Video Game Publishing Community” explicitly or implicitly targeted by
the application “.game” gTLD?
(5) Is there any material detriment to the rights or legitimate interests of the “Video
Game Publishing Community” if the application “.game” gTLD is allowed to proceed?
56. In the following sections, the Expert summarises the Parties’ positions concerning each of these issues, as elaborated by the Parties in their written pleadings, followed by the Expert’s own analysis and determination concerning such
issues.
A. Objector’s Standing(1) Does ESA have standing to put forward a Community Objection against theapplication made by Amazon?
57. Prior to considering the grounds of the objection, it is necessary to address
the question of whether ESA has standing to put forward a “Community Objection” against the application “.game” gTLD made by Amazon.
(i) Positions of the Parties
58. Applicant has challenged Objector’s standing to file an objection to the application “.game” gTLD. In its Response, Applicant argues that Objector failed toprove that it is “an established institution” that has “an on-going relationship” witha “clearly delineated community” as a whole, failing to meet the standard established in section 3.2.2.4 of the ICANN Guidebook.18
59. Regarding the requirement that Objector be “an established institution”, Amazon argues that ESA failed to prove the Guidebook factors that need to be considered, namely, (i) level of global recognition of the institution19;(ii) length of timethe institution has been in existence20; and (iii) public historical evidence of its
existence, such as the presence of a formal charter or national or international
18

See: Response, page 4.
See: Response, page 5. According to Applicant, “The objection contains no information about
global recognition other than an unsupported statement that Objector offers an unspecified `”global
anti-piracy program” and that “it represents its industry in Washington [and] across the world”.
20
See: Response, page 5. According to Applicant, “Although Objector states that it was “founded in
1996”, this statement is unsupported by any evidence (…)” and “fails to acknowledge that 1996 was
25 years after the video game industry began”.
19

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registration, or validation by a government, inter-governmental organization, or
treaty.21
60. Similarly, as for the requirement that Objector have “an ongoing relationshipwith a clearly delineated community”, Amazon states that ESA failed to provide
any evidence to support three of the four relevant Guidebook factors to consider
in making such determination, namely (i) “the presence of mechanisms for participation in activities, membership and leadership”;(ii) “institutional purpose related
to the benefit of the associated community”; and (iii) “the level of formal boundaries around the community”.22
61. Applicant further states that, in fact, a “clearly delineated community” is unlikely to exist around any generic term such as “game” because “by definition, a generic term is a term which is used by a significant number of people, who do notnecessarily share similar goals, values or interests”.23
62. Although Objector has not dealt directly with these arguments, which were put
forward once ESA had submitted its Objection, it claims that it has standing to
object to the application for the “.game” gTLD since it represents the business andpublic affairs of companies in the video game industry24, which has been impacted by the mentioned string application. According to Objector, ESA was founded
in 1996 and represents its industry not only across the nation but also around theworld.
63. Further, Objector states that it offers different services to video game publishers such as a global anti-piracy program, business and consumer research, government relations and intellectual property protection efforts. Based on this argument, ESA claims to protect “the industry’s rights and legislative interests”.25
64. In particular, ESA alleges that it (i) has 36 members, “including the three major video game console makers and most of the world’s most prominent video
game publishers”; (ii) owns and operates a website that has been active for overten years and states ESA’s goals and activities, and; (iii) owns and organizes theE3 trade show, “the world’s premier trade show for computer and video games
and related products”.26(ii) Considerations of the Expert
21

See: Response, page 5. According to Applicant, Objector “has provided no historical evidence of
its existence –no corporate registration, charter, organizational documents or other documentationthat shows Objector is recognized by any government or when Objector was actually created”.
22
See: Response, pages 5 and 6.
23
See: Response, page 6.
24
See: Objection, page 4. According to Objector, “ESA represents the business and public affairs
needs of companies in the video game industry, including companies that publish computer andvideo games for video game consoles, personal computers and the internet”.
25
See: Objection, page 4.
26
See: Objection, page 4.

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65. Pursuant to section 3.2.2 of the ICANN Guidebook, it is for the Expert to determine whether Objector has standing to object.
66. In accordance with the ICANN Guidebook, objectors must satisfy certain
standing requirements to have their objections considered by the expert panel. In
the case of a “Community Objection”, “established institutions associated withclearly delineated communities are eligible to file a community objection. The
community named by the objector must be a community strongly associated withthe applied-for gTLD string in the application that is the subject of the objection”.27
67. Therefore, to qualify for standing for a “Community Objection”, Objector
should fulfill two conditions, namely (i) be an established institution, and; (ii) havean ongoing relationship with a clearly delineated community. Objector has theburden to prove that both requirements are met.28
68. Referring to these factors, the ICANN Guidebook states that “the panel will
perform a balancing of the factors listed above, as well as other relevant information, in making its determination. It is not expected that an objector must
demonstrate satisfaction of each and every factor considered in order to satisfy
the standing requirements”.29
69. The Expert notes that ESA is the sole community Objector. ESAC, ISFE andiGEA which allegedly supported the Objection as “Third Party Objectors”30shouldbe treated as “related entities” since they have not submitted formal objections to
Amazon’s Application. Therefore, the Expert will examine the issue of standing
only regarding Objector, pursuant to the ICC “Clarifications regarding multiple
Objections and multiple Objectors”.31
70. Regarding the first condition to be met (i.e.: “established institution”), section
3.2.2.4 of the ICANN Guidebook lists some key factors which may be consideredby the expert panel in making its determination. These factors are: (i) the level ofglobal recognition of the institution; (ii) the length of time the institution has been
in existence; and (iii) the public historical evidence of its existence, such as thepresence of a formal charter or national or international registration, or validation
by a government, inter-governmental organization, or treaty.
27

See: section 3.2.2.4 of the ICANN Guidebook.
See: section 3.2.2.4 of the ICANN Guidebook.
29
See: section 3.2.2.4 of the ICANN Guidebook.
30
See: Objection, page 5 and Annex C to Objection.
31
Available at: http://www.iccwbo.org/products-and-services/arbitration-and-adr/expertise/icannnew-gtld-dispute-resolution/how-to-file-an-objection/. According to the ICC’s clarifications: “EachObjection must be filed by one Objector only … An Objector may wish to be supported by otherentities” either to demonstrate its standing or to finance its Objection. “However, only the Objector
itself will be considered as a party to the proceeding. All other entities will be considered as related
entities. Accordingly, in case of a Community Objection, the Expert's test as to whether the Objector
has standing, will be tested solely with regard to the Objector itself”.
28

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71. Furthermore, “the institution must not have been established solely in conjunction with the gTLD application process”.32
72. Applicant has challenged Objector’s standing on the grounds that it has failed
to prove that it is “an established institution”. According to Applicant, Objector’s
statement that it was founded in 1996 is unsupported by any evidence and, in any
event, ESA was created 25 years after the video game industry began. Thus, it
has existed for a short period of time compared to the age of the industry it allegedly represents.33 Further, Objector has provided no information about its global
recognition or any public historical evidence of its existence.34
73. ESA is the U.S. trade association of the video game industry. Although Objector has provided no by-laws or public records of the institution evidencing that it
was “founded in 1996”, the information of Objector’s structure and activities existing in the web indicates that ESA has been in existence for a significant length oftime. This appears in principle as sufficient, in the Expert’s view, to consider Objector as an established institution and that such association was not created withthe sole intention to participate in the gTLD application process. The fact that it
would have been founded 25 years after the video game industry started –as alleged by Applicant– does not appear as relevant to determine if Objector is an“established institution”35 nor is a Guidebook factor to be taken into account.
74. Objector also meets the standard of “global recognition” of the institution mentioned in the ICANN Guidebook. It has sufficient membership, comprising of 36
members including leading companies in the industry such as Microsoft Corporation, Nintendo of America, Sony Computer Entertainment of America, Ubisoft andElectronic Arts, among others.36 These companies develop, publish and distributeinteractive software worldwide.37
75. Moreover, as reflected in Objector’s website38, ESA represented the video
game industry in the leading case “Brown v. Entertainment Merchants Association/Entertainment Software Association”39, the U.S. Supreme Court’s decisionthat recognized that video games are entitled the same First Amendment protections as other forms of entertainment and art such as books, music, plays, movies, etc. In its decision, the U.S. Supreme Court acknowledged ESA’s standing to32

See: section 3.2.2.4 of the ICANN Guidebook.
See: Response, page 5.
34
See: Response, page 5.
35
Moreover, according to the ICANN Generic Names Supporting Organisation (GNSO)’s “NewgTLDs Summary Principles, Recommendations & Implementation Guidelines” published on October22, 2008 (available at: http://gnso.icann.org/en/issues/new-gtlds), an established institution is “aninstitution that has been in formal existence for at least 5 years …”
36
See: Annex B to Objection.
37
See: Annex A to Objection.
38
See: http://www.theesa.com/policy/scotus.asp.
39
556 F. 3d 950 (2011). The U.S. Supreme Court’s decision is available at:
http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf.
33

- 13 -

represent the video game industry,40 fact that in the opinion of the Expert further
supports ESA’s level of “public recognition”.
76. ESA’s policy-setting is led by member companies who serve on ESA’s threeworking groups –Intellectual Property Group, Public Policy Committee and Public
Relations Working Group– by means of which they act on issues that affect theentertainment software industry as a whole.41 This fact indicates that the institution has an organized structure.
77. Finally, the fact that ESA runs, organizes and hosts the Electronic Entertainment Expo (“E3”), an annual event that converges the attendance of leading
computer and video game companies, business partners, buyers and retailers,
consumers, worldwide media, etc.42 provides additional support to the “global
recognition” of ESA.
78. The Expert finds, after balancing the relevant Guidebook factors43, that thefacts described before are reasonably enough to conclude that Objector is an“established institution” in the terms of section 3.2.2.4 of the ICANN Guidebook.
79. Having decided that Objector meets the first standard contained in the ICANN
Guidebook, the Expert should now turn to the issue of whether Objector as anestablished institution has an ongoing relationship with a clearly delineated community.
80. In this regard, the Expert notes that the existence of a “clearly delineatedcommunity” is an element which must be proved by the Objector both (i) to establish standing44 and (ii) to prevail on the merits.45 Nothing in the ICANN Guidebook
suggests that the words “clearly delineated community” should be given any different meaning when evaluating standing than they are given when evaluating themerits of an objection. Thus, the Expert will address the issue of the existence ofa “Video Game Publishing Community” when evaluating the merits of the Objection.
81. That said to make a determination on whether Objector as an establishedinstitution has an ongoing relationship with a clearly delineated community, theExpert must take into account the guidelines provided in section 3.2.2.4 of theICANN Guidebook. Such provision sets out some of the elements that may be
40

Available at: http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf. According to the U.S.
Supreme Court’s decision, “Respondents, representing the video-game and software industries,
filed a pre-enforcement challenge to a California law that restricts the sale or rental of violent video
games to minors”.
41
See: Annex B to Objection.
42
See: Annex B to Objection.
43
Section 3.2.2.4 of the ICANN Guidebook states that the Expert “will perform a balancing of thefactors listed above, as well as other relevant information, in making its determination”.
44
See: section 3.2.2.4 of the ICANN Guidebook.
45
See: section 3.5.4 of the ICANN Guidebook.

- 14 -

considered: (i) the presence of mechanisms for participation in activities, membership, and leadership; (ii) the institutional purpose related to the benefit of theassociated community; (iii) the performance of regular activities that benefit theassociated community; and (iv) the level of formal boundaries around the community.
82. Applicant challenges Objector’s relationship with the community on the
grounds that it fails to define the “video game industry” and provides no information on (i) formal boundaries that may exist around the community; (ii) mechanisms for participation in activities, membership and leadership; and (iii) information about the institutional purpose of Objector or its alleged community.46 Further, Applicant states that, in fact, a “clearly delineated community” is unlikely toexist around any generic term such as “game”.47
83. In the Expert’s view, Applicant’s argument is not convincing. First, Objector
states that it represents a delineated community, the “Video Game Publishing
Community”48comprised of companies that publish computer and video games forvideo game consoles, personal computers and the Internet.49
84. In the words of Objector, “ESA brings this Community Objection action on
behalf of members of the video game publishing community (“the Industry”) to
prevent Amazon EU S.a.r.l. (…) from obtaining and operating the .game top-leveldomain as a closed registry (…)”50
85. Furthermore, Objector’s institutional purposes are closely associated with thebenefits of the community members it represents51 and its regular activities appear as naturally intended to benefit its members. Indeed, ESA offers services tointeractive entertainment software publishers including (i) a global anti-piracy program; (ii) business and consumer research; (iii) information on federal and state
regulations; (iv) intellectual property efforts and public affairs; (v) policy-setting52;

46

See: Response, pages 6 and 7.
See: Response, page 6.
48
See: Objection, page 5.
49
See: Objection, page 4.
50
See: Objection, page 5.
51
According to Objector’s website (See: Annex B to Objection):“ESA supports the interactive entertainment software industry by providing insight, knowledge and assistance to help companies move
forward and achieve their goals. From market research to information on federal and state regulations, to intellectual property issues and public affairs, ESA’s knowledge and expertise covers many
issues faced by computer and video game publishers”.
52
According to Objector’s website (See: Annex B to Objection): “ESA members set the priorities for
our work on Capitol Hill and with state legislatures and local governments across de nation. One of
ESA’s top priorities is to ensure that video games receive the same First Amendment protection as
books, movies and music”. ESA represented the industry before the U.S. Supreme Court in Brown
v. EMA/ESA, a historic challenge to this protection, resulting in a landmark ruling by the Court thataffirmed video games’ First Amendment rights. ESA also works with policymakers on key financial
issues, such as taxation and incentives”.
47

- 15 -and (vi) the E3 show.53
86. In addition, Objector, as an institution that represents multiple video game
publishing companies, explicitly foresees –through its website54– mechanisms forparticipation in ESA’s regular activities such as policy-setting, lobbying efforts,business and consumer research and the E3 show. According to the information
existing in Objector’s website, member companies participate and “set the priorities”55 for policy-setting by serving on the three “Working Groups” already mentioned.56 They also participate actively in the annual E3 show “which offers opportunities for both ESA members and non-members to stage major press eventsand hold meetings with media, retailers, business partners and other key audiences…”.57
87. As explained above58, the Expert will address the issue of the existence of a“Video Game Publishing Community” when evaluating the merits of the Objection.
Notwithstanding so, for the sole purpose of determining standing, the Expert advances his view –developed in section B (2) below- that Objector’s “community”,
which includes multiple companies that publish computer and video games, is“clearly delineated” for the purpose of objecting to the application for “.game”
gTLD made by Amazon.
88. Therefore, in the Expert’s view, the Entertainment Software Association is anestablished institution which has an ongoing relationship with a clearly delineatedcommunity –the “Video Game Publishing Community”- and, in such role, hasstanding to object to Applicant’s application in the present case.
B. The “Video Game Publishing Community”(2) Is the “Video Game Publishing Community” clearly delineated?
89. Having decided that ESA has standing to object to the application for “.game”
gTLD made by Amazon, the Expert will now focus on the issue of whether the53

According to Objector’s website (See: Annex B to Objection) ESA owns and operates the E3
show, which converges leading computer and video game companies from over 100 countries. In
this regard, “The three-day event offers opportunities for both ESA members and non-members tostage major press events and hold meetings with media, retailers, business partners and other key
audiences. (…) The most influential people leading the most innovative companies in the industry
attend E3 to see groundbreaking new technologies and never-before-seen products for computers,
video game consoles, handheld systems, mobile and social, and the Internet”.
54
Available at: www.theesa.com.
55
According to Objector’s website (See: Annex B to Objection):“Members set the priorities for the
association’s legislative, anti-piracy and intellectual property initiatives, providing an opportunity to
influence issues that affect the entertainment software industry overall, as well as their individual
bottom lines”.
56
According to Objector’s website (See: Annex B to Objection): “ESA’s policy-setting is led bymember companies serving on ESA’s three Working Groups: Intellectual Property Working Group,
Public Policy Committee and Public Relations Working Group”.
57
See: Annex B to Objection.
58
See: paragraph 80.

- 16 -

“Video Game Publishing Community” is clearly delineated.
(i) Positions of the Parties
90. As mentioned in section V above, Objector claims that ESA –along with Third
Party Objectors59– represent many of the world’s leading entertainment softwareand online game publishers, whose games account for a majority of the gamesoftware sold around the world.60
91. Objector also explains that online distribution of games and game content
comprises the greatest percentage of industry revenue.61
92. Finally, Objector argues that Amazon itself is involved in the video game industry and therefore, as a “major vendor and creator of video games”, participatesin Objector’s industry.62
93. As mentioned in section V above, Applicant rejects Objector’s assertion on the
grounds that Objector failed to prove that the community expressing opposition
can be regarded as a “clearly delineated community”.63 Indeed, Applicant argues
that Objector failed to address the five Guidebook factors to be considered in order to perform the community test.
94. In this regard, Applicant affirms that Objector provides no information as to thelevel of public recognition of either Objector or of the video game industry. Neither
does it provide any criteria for the formal boundaries that form the community.
Therefore, Applicant has been unable to determine who is eligible to become amember of Objector’s association. It further argues that “it is also quite unclear
whether the relevant community consists solely of Objector’s members or whether
it is broader (given, for example, Objector’s references to Third Party Objectors(…))”.64
95. As for the length of time the community has been in existence, Applicant argues that Objector is a “relatively new entity”.65 In addition, Objector’s statementthat it has 36 members is meaningless without additional information.66
59

See: Objection, page 5. According to Objector, the objection “has third party support from theEntertainment Software Association of Canada (“ESAC”), which represents the Canadian computerand video game industry; the Interactive Software Federation of Europe (“ISFE”), which represents
the interests of 445 video game publishers in 20 different European countries; and the Interactive
Games and Entertainment Association (“iGEA”), which represents the business and public policy
interests of Australian and New Zealand in the computer and video game industry (collectively,“Third Party Objectors”)”.
60
See: paragraphs 42 and 43.
61
See: Objection, page 6.
62
See: Objection, page 6.
63
See: paragraph 50.
64
See: Response, page 7.
65
See: Response, page 7.
66
See: Response, page 7.

- 17 -

96. Furthermore, according to Applicant, ICANN’s Independent Objector has
made clear that it is unlikely that a “clearly delineated” community exist around ageneric term (“.game”) which is by definition used by a significant number of people, who do not necessarily share similar goals, values or interests.67
97. Finally, Applicant affirms that if Objector represents any community that would
be the “video game” community “which is a much narrower community that thebroad “game” community that might be identified by the applied-for string, giventhat the word “game” can be associated with many industries or communities other than the video game industry (…)”.68(ii) Considerations of the Expert
98. In accordance with section 3.5.4 of ICANN Guidebook, “For an objection to be
successful, the objector must prove that … the community expressing opposition
can be regarded as a clearly delineated community”.
99. As mentioned before, the ICANN Guidebook offers useful guidelines in orderto determine whether a community is clearly delineated. “A panel could balance a
number of factors to determine this, including but not limited to:” (i)“The level of
public recognition of the group as a community at a local and/or global level;”(ii)“The level of formal boundaries around the community and what persons or
entities are considered to form the community;” (iii) “The length of time the community has been in existence;” (iv) “The global distribution of the community (thismay not apply if the community is territorial); and” (v)“The number of people orentities that make up the community”.69
100. Having set out the factors to be considered, the ICANN Guidebook further
provides that “…if opposition by a number of people/entities is found, but thegroup represented by the objector is not determined to be a clearly delineatedcommunity, the objection will fail”.70
101. The word “community” is broad and allows more than one interpretation.
Besides the political (nationality), religious or ethnic meanings or implications thatthe term may have, it generally refers to a “group of people” that may be considered as a “unit” that share similar interests, goals or values.71
67

See: Response, page 7.
See: Response, page 7.
69
See: section 3.5.4 of the ICANN Guidebook.
70
See: section 3.5.4 of the ICANN Guidebook.
71
According to the British English Dictionary, the word “community” has three different meanings “1)the people living in one particular area or people who are considered as a unit because of theircommon interests, social group, or nationality, 2) a group of animals or plants that live or grow together, 3) the general public”. See British English Dictionary, Cambridge Ed., 2013. Module 4 of theICANN Guidebook introduces some criteria when approaching Community Priority Evaluation for
String Contention Procedures involving a community-based application. Although such criteria are
not applicable in this case, they are consistent with the analysis performed in the present case.
68

- 18 -

102. The GNSO recommends that “community should be interpreted broadly andwill include, for example, an economic sector, a cultural community, or a linguistic
community. It may be a closely related community which believes it is impacted”.72 Although GNSO’s report provides a useful guideline, the Expert notes thatsuch report is not part of the formal standards that must be followed according to
the ICANN Guidebook.
103. In similar terms, ICANN’s Independent Objector (IO) determined that “thenotion of ‘community’ is wide and broad … It can include a community of interests, as well as a particular ethnical, religious, linguistic or similar community.
Moreover, communities can also be classified in sub-communities (i.e. the Jewish
community in New York or the Italian community on Facebook). However, beyond
the diversity of communities, there are common definitional elements and a community can be defined as a group of individuals who have something in common(which can include their nationality or place of residence –i.e. the French community…– or a common characteristic –i.e. the disability community), or share common values, interests or goals…”.73
104. In the case at hand, Objector has not provided an accurate definition of thecommunity it purports to represent. However, it appears that the community at
issue is the “Video Game Publishing Community” as a group of companies in thevideo game industry that publish computer and video games.
105. In the Expert’s view such community meets the standard of “global recognition”, as mentioned in the ICANN Guidebook. ESA and the Third Party Objectors
have a substantial membership, including leading multinational companies in theindustry such as Microsoft Corporation, Nintendo of America, Sony ComputerEntertainment of America, Ubisoft and Electronic Arts, among others. These wellknown companies develop, publish and distribute interactive software worldwide
and their local subsidiaries are members of their respective regional associations(United States of America, Canada, Europe and Australia and New Zealand)
which represent the video game publisher’s interests locally. In the Expert’s opinion, the community’s member companies are widely recognized by the public asleading and representative global players in this field.74
106. Further, regarding the “number of… entities that make up the community”, an
aspect that the ICANN Guidebook highlights as relevant, the Expert notes that72

See: GNSO’s “New gTLDs Summary Principles, Recommendations & Implementation Guidelines”
published on October 22, 2008, available at: http://gnso.icann.org/en/issues/new-gtlds.
73
See: “The Issue of ‘Closed Generic’ gTLDs Applications – The Views of the Independent Objector” available at: http://www.independent-objector-newgtlds.org/home/the-issue-of-closed-genericgtlds/.
74
In the words of Objector, ESA and Third Party Objectors “represent many of the world’s leading
entertainment software and online game publishers, whose games account for a majority of thegame software sold in most countries of the world”.

- 19 -

ESA75, ESAC76, ISFE77 and iGEA’s78 websites indicate that (i) ESA has 36 members; (ii) ESAC has 17 members; (iii) ISFE has 27 members; and (iv) iGEA has 19
members.
107. Most of the leading companies in this field79 are members of the four abovementioned associations either directly or through their local or regional subsidiaries. Each association represents the regional video games industry and this fact
seems to confirm that the standard of global distribution is met.
108. As for the “level of formal boundaries around the community…”,the available
information indicates that the “Video Game Publishing Community” is limited tocompanies which produce or publish computer and video games for video game
consoles, personal computers and the Internet.80
109. Balancing all the relevant factors, the Expert concludes that the “Video
Game Publishing Community” is a clearly delineated community which comprises
companies in the video game publishing industry. This community has a strong
relationship with the different players of the video game industry as a whole suchas consumers (“video gamers”), the media, video game distributors, retailers andother important participants therein.
110. However, in the Expert’s opinion, it can be noted in passing that there is abroader “Games Community” which encompasses not only the community atstake but also other relevant communities that may exist around different types ofgames such as board games, card games, dice games, role-playing games, etc.
C. The “Substantial Opposition” to the application(3) Is there a substantial opposition to the application “.game” gTLD on behalf of asignificant part of the “Video Game Publishing Community”?
111. Having decided that the “Video Game Publishing Community” is clearly delineated, the Expert now turns to determine whether there is a substantial opposition of a significant part of the “Video Game Publishing Community”.

75

Available at: www.theesa.com.
Available at: www.theesa.ca.
77
Available at: www.isfe.eu.
78
Available at: www.igea.net.
79
According to the available information at the websites, companies such as Activision Blizzard,
Disney Interactive Games, Electronic Arts Inc., Microsoft Interactive Entertainment, Sony ComputerEntertainment, Nintendo and Warner Bros. Home Entertainment are represented in all of the four
associations (ESA, ESAC, ISFE and iGEA).
80
For example, according to ISFE’s website: “Who is eligible to be a member? Any association or
multinational corporation based in the EEA (EU plus Norway, Iceland and Liechtenstein) representing the interactive software industry, or with the business objective of producing and/or publishinginteractive software. Other entities closely connected with the interactive software industry may also
be admitted”.
76

- 20 -(i) Positions of the Parties
112. Objector highlights that “there is substantial opposition to the Disputed TLD
Application from a significant portion of the community… including the international membership of Objector’s association and of Third Party Objectors81, as
well as the communities represented by the other persons and entities that specifically oppose the Application or generally oppose the delegation of closed generic
TLDs”.82
113. Objector claims that Third Party Objectors (ESAC, ISFE and iGEA) supported the Objection by means of a letter sent to ICANN on March 7, 2013.83
114. According to Objector, other institutions have specifically opposed to the“.game” Application84 including the American Intellectual Property Law Association, the Coalition for Online Accountability, the Consumer Watchdog and Dot
Food LLC.85
115. Further, Objector provides additional examples of international opposition to
generic gTLDs and states that governments, business organizations, commentators and other entities have “united in international opposition to granting an individual member of an industry a closed generic TLD comprised of a common generic industry term”.86
116. In turn, Applicant claims that ESA has failed to prove “substantial opposition”
to the application “within the community it has identified itself as representing”,
since Objector provided no adequate evidence of the ICANN Guidebook factors todetermine whether there is substantial opposition.87
117. Applicant states that although Objector provided letters of support “it is impossible to determine how substantial this opposition is ‘relative to the composition of the community’, because the objection contains no information as to thesize of the community” (Emphasis added by Applicant in its Response).88
118. Further, Amazon also claims that many important and well-known companies
in the video game community are not members of ESA and therefore have notexpressed opposition89 including Rovio90, Atari91, Activision Blizzard92, Zynga93
81

See: Objection, page 5, page 14 and Annex C to Objection.
See: Objection, page 14.
83
See: Annex C to Objection.
84
See: Objection page 15, page 16.
85
See: Objection, page 15, page 16 and Annex P to Objection.
86
See: Objection page 14, page 17 and Annexes P and Q to Objection.
87
See: Response, page 7.
88
See: Response, page 8.
89
See: Response, page 8.
90
See: Annex 3 to Response.
91
See: Annex 4 to Response.
92
See: Annex 5 to Response.
82

- 21 -and Valve.94
119. Finally, Applicant alleges that Objector did not submit any comments on Applicant’s “.game” Application during the three-month period in which ICANN invited the public to submit comments on all of the gTLD applications.95(ii) Considerations of the Expert
120. The Expert has to decide whether there is a substantial opposition to theapplication “.game” gTLD on behalf of a significant part of the “Video Game Publishing Community”.
121. In this respect, the Expert will focus on section 3.5.4 of the ICANN Guidebook, which establishes some of the standards to be examined in order to make adetermination on this issue.96
122. Although the Expert acknowledges that entities outside the “Video Game
Publishing Community” have expressed opposition both to the “.game” Application and to the gTLD’s in general, it will only consider the opposition expressed
within the community at issue.
123. Having said that, in order to determine the appropriate standard to evaluate
the Objection, it should be noted that section 3.5.4 of the ICANN Guidebook does
not require that the “entire” community expresses its opposition. Rather, it requires that Objector prove a “substantial” opposition within the community it has
identified itself as representing.
124. Therefore, the Expert is of the view that the argument on the impossibility todetermine how substantial the opposition is relative to the composition of thecommunity, as put forward by Applicant, should be balanced with the relevanceand representative nature of each opposition within the community. ESA alongwith the Third Party Objectors comprise a significant portion if not the most important companies within the “Video Game Publishing Community”. For instance,
the opposition made by an individual “video gamer” or fan should not have thesame weight in order to determine if an objection represents substantial opposition that the one made by the Interactive Software Association of Europe, as occurred, indeed, in the present case.
93

See: Annex 6 to Response.
See: Annex 7 to Response.
95
See: Response, page 9.
96
According to such provision, “a panel could balance a number of factors to determine whether
there is substantial opposition, including but not limited to:” (i) “Number of expressions of opposition
relative to the composition of the community;” (ii) “The representative nature of entities expressing
opposition;” (iii) “Level of recognized stature or weight among sources of opposition;” (iv) “Distribution or diversity among sources of expressions of opposition, including:” (a) “regional”, (b) “subsectors of community”, (c) “the leadership of community”, (d) “membership of community”;” (v) “Historical defense of the community in other contexts; and” (vi) “Costs incurred by objector in expressing
opposition, including other channels the objector may have used to convey opposition”.
94

- 22 -

125. In this respect, the Expert is satisfied with the evidence produced by Objector, which includes a letter submitted to ICANN97 in response to its request for
public comment, where different “Video Game Publishing Community” members
express their opposition to the Application at hand. The Expert has already elaborated in its opinion that ESA, ESAC, ISFE and iGEA represent most of the leading
companies in the video game publishing industry and therefore it concludes thatthe community opposition is substantial.
126. The fact that some important companies in the video game industry have notexpressed opposition should not be seen as a reason to rule out Objector’s claim
as ESA and the Third Party Objectors represent a very significant part of the “Video Game Publishing Community” and the ICANN Guidebook by no means requirethat each and every member of the community expresses its opposition.
127. Finally, the fact that Objector did not submit comments during ICANN’s public comment period does not preclude ESA from filing a Community Objection nor
does it indicate the lack of substantial opposition from the relevant community.
128. Therefore, based on the representative nature of Objector within the “Video
Game Publishing Community”, the relevance of the entities which have expressed
their opposition through Objector and Third Party Objectors and the global recognition of the entities which are represented in these proceedings, the Expert concludes that there is a substantial opposition to the application “.game” gTLD on
behalf of a significant part of the “Video Game Publishing Community” as established in section 3.5.4 of the ICANN Guidebook.
D. Targeting(4) Is the “Video Game Publishing Community” explicitly or implicitly targeted by
the application “.game” gTLD?
129. The next issue to be decided by the Expert is whether the “Video Game Publishing Community” has been explicitly or implicitly targeted by the application“.game” gTLD made by Applicant.
97

See: Annex C to Objection. According to the letter dated March 7, 2013, ESA, ESAC, ISFE andiGEA“… collectively write to express the video game industry’s concern that two closed or restricted
generic top-level domain applications for .game may adversely impact our industry”. In the letter’s
Executive Summary, the associations make the following statements “ICANN introduced generic
top-level domains (“gTLDs”) with the stated goal of ‘enhancing competition and consumer choice’.
Contrary to this goal, two entities have submitted applications for the .game gTLD with an intent toadminister the gTLD in closed or highly-restricted fashion. It would be improper to grant these applications for the following reasons: it will position the gTLD owner to gain unfair advantage over competing industry members, severely hampering competition and consumer choice; and it will provide
exclusive protection for a generic industry term in conflict with well-established international precedent and norms. Accordingly, we ask that ICANN decline both of these applications for .game
gTLDs, with an appropriate refund, or alternatively, require that the gTLDs operate as open registries”.

- 23 -(i) Positions of the Parties
130. Objector states that “the Disputed TLD is explicitly and implicitly targeted tothe businesses and consumers in the Industry, including Objector’s members andtheir customers”.98
131. According to Objector, “it is self-evident that the Disputed TLD .game, iscomprised of the common generic term for the game industry”.99 In this regard,
Objector provides dictionary definitions and other references to establish that“game” is a common generic term for its industry.100
132. Therefore, Objector contends that “the term ‘game’ is regularly used as a
generic term to designate the kind of products in Objector’s Industry, as demonstrated by countless United States and European trademark product and service
descriptions in which the word ‘game’ is used as a generic term in connection with‘computer’ or ‘software’ …”.101
133. Conversely, Applicant alleges that Objector failed to prove a “strong association” between the applied-for gTLD string and alleged community –as required by
the ICANN Guidebook– since Amazon’s Application contains no reference to thephrase “video game”. Therefore, according to Applicant, “there are no statementsin the Application indicating an association (let alone a “strong association”) between the applied-for gTLD and the community represented by Objector”.102
134. Further, Applicant argues that ESA’s Objection contains no evidence –nosurveys or other documents– of any associations by the public between “.game”
and the community at issue and, in any event, the word “game” has many definitions, none of them associated with the video game industry.103
135. Finally, Applicant argues that the term “game” can be associated with many
communities other than the video game industry since “game” can refer to board
games, sport games, card games, the Olympic Games, etc. Therefore, “given thismultitude of definitions for the word “game”… it is impossible to conclude that … itis strongly associated with the Objector’s community”.104(ii) Considerations of the Expert
136. It is for the Expert to decide whether the “Video Game Publishing Community” is explicitly or implicitly targeted by the application “.game” gTLD.
98

See: Objection, page 6.
See: Objection, page 7.
100
See: Objection, page 7 and Annex E to Objection.
101
See: Objection, page 7 and Annex F to Objection.
102
See: Response, page 9 and Annex 8 to Response.
103
See: Response, page 9 and Annex 9 to Response.
104
See: Response, page 10.
99

- 24 -

137. Pursuant to section 3.5.4 of the ICANN Guidebook, “The objector must provea strong association between the applied-for gTLD string and the community represented by the objector. Factors that could be balanced by a panel to determine
this include but are not limited to:” (i) “Statements contained in application;” (ii)“Other public statements by the applicant; and” (iii) “Associations by the public”.
138. The ICANN Guidebook does not define what it means for a community to be“strongly associated” with the applied-for gTLD. Rather, it suggests certain nonexclusive factors that the Expert could balance in order to determine this community ground.
139. In section B above, the Expert found that the “Video Game Publishing Community” is “clearly delineated” although encompassed in a broader “Games Community”.
140. Generic strings consist of words that denominate or describe a general classof goods, services, groups, organizations or things and do not distinguish specifictypes of goods, services, groups, organizations or things from others within thegeneral class.
141. In the Expert’s view, “game” is a generic term that can be associated withmany relevant communities that may exist around different types of games suchas board games, card games, dice games, role-playing games, etc. All thesecommunities, along with Objector’s community, exist around a broader “Games
Community” which is more likely to be targeted by the applied-for string “.game”.
142. Accordingly, the generic term “game” without any specificity (i.e. “videogame”) not only does not match the name of the community at stake but also
clearly has other meanings beyond identifying such community. Therefore, theExpert finds that the term “game” goes beyond the specific goals, values or interests of the “Video Game Publishing Community” and does not effectively namethe community at issue.
143. In fact, the Expert introduced the word “game” or “games” in Amazon’s U.K.
search-engine, and obtained 5,294,179 results classified into different “Departments” such as board games, trivia and quiz games, puzzles, educational games,
travel and pocket games, PC and video games, etc.105
144. Moreover, there are other existing terms that identify the “Video Game Publishing Community” such as the term “video game”. If Applicant had applied forthe “.videogame” gTLD then it is probable that Objector would have succeeded in
its argument of “strong association” with said community, but the applied-for gTLD
lacks specificity and does not appear to target the community at issue.
105

See:http://www.amazon.co.uk/s/ref=nb_sb_noss_1?url=search-alias%3Daps&fieldkeywords=games.

- 25 -

145. As regards the suggested ICANN Guidebook factors to be taken into account, according to the GNSO’s recommendations, “explicitly targeting means
there is a description of the intended use of the TLD in the application” and “implicitly targeting means that the objector makes an assumption of targeting or thatthe objector believes there may be confusion by users over its intended use”.106
146. In its Application Amazon does not state that it intends to use the gTLD particularly in relation to video games107–in fact, the Application contains no reference to the phrase “video game” or “video game industry”– and as for implicit targeting, the Objection contains no evidence of any “associations” made by the
public between the term “game” and the “Video Game Publishing Community”.
147. For all these reasons, the Expert concludes that there is no “strong association” between “.game” and the “Video Game Publishing Community” and that Objector has failed the “targeting” test of section 3.5.4 of ICANN’s Guidebook.
148. This, in addition to the fact that –as will be determined below– Objector has
failed to prove that the Application creates a likelihood of material detriment to therights or legitimate interests of a significant portion of the community, lead theExpert to dismiss the Objection.
E. Detriment(5) Is there any material detriment to the rights or legitimate interests of the “Video
Game Publishing Community” if the application “.game” gTLD is allowed to proceed?
149. Finally, the Expert will address the issue of whether the application “.game”
gTLD causes any material detriment to the rights or legitimate interests of the“Video Game Publishing Community”.
(i) Positions of the Parties
150. Objector states that Applicant intends to operate the Disputed TLD as aclosed registry and that “it would be improper to grant the Application because
doing so will threaten to severely hamper competition and consumer choice, particularly in this case where the Applicant seeks to obtain exclusive protection for a

106

See: GNSO’s “New gTLDs Summary Principles, Recommendations & Implementation Guidelines” published on October 22, 2008, available at: http://gnso.icann.org/en/issues/new-gtlds.
107
See: Annex 8 to Response. In its answer to question 18(a) –“Mission/Purpose”, Amazon states“The mission of the .GAME registry is: to provide a unique and dedicated platform for Amazon while
simultaneously protecting the integrity of its brand and reputation. A .GAME registry will … provide
Amazon with additional controls over its technical architecture, offering a stable and secure foundation for online communication and interaction … provide Amazon a further platform for innovation …
enable Amazon to protect its intellectual property rights”.

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generic industry term in conflict with well-established international principles”108151. According to Objector, the exclusive operation of “.game” will grant Amazon
an improper perpetual monopoly over a common generic industry term since it will
be able to prevent others from registering similar TLDs such as “.games” or“.gamer” in the future and will be in position to gain advantage in both direct navigation and online search results therefore “hindering effective online competitionby others” in the industry.109 In addition, ESA contends that “given that most generic TLDs will be open, consumers likely will not recognize that websites associated with the Disputed TLD are from a single entity, thereby threatening consumer’s ability to choose and harming Applicant’s competitors who cannot avail themselves of the Disputed TLD”.110
152. Further, according to Objector, international law does not allow exclusive
ownership or control of common generic terms and this same prohibition applies
with equal force to generic TLDs since “the value derived by generic TLDs approximates that of generic terms in the trademark context”.111
153. Finally, Objector also notes that Amazon’s Application is contrary to ICANN’s
stated goal of “enhancing competition and consumer choice” with the introductionof new generic TLDs.112
154. Applicant contends that Objector has not proved a likelihood of material detriment to the rights or legitimate interests of the alleged community as required by
the ICANN Guidebook. In its opinion, Objector has failed to address the issue orprovide any evidence regarding the relevant factors to determine the existence ofmaterial detriment. In Applicant’s words, “Objector’s arguments appear to rely
solely on an unfounded, unsupported and illogical concern that the Application‘would threaten to severely hamper competition and consumer choice …”113
155. According to Applicant, Objector’s argument is purely speculative and unsupported by any evidence. It also ignores several comments submitted to ICANN–which Applicant lists in its Response– which state that single-registrant gTLDs
foster competition and innovation rather than restrict it.114
156. In response to Objector’s argument that Amazon’s use of “.game” will “hinder
effective online competition by others”, Applicant states that many generic words

108

See: Objection, page 6.
See: Objection, page 8.
110
See: Objection, page 9.
111
See: Objection, page 11.
112
See: Objection, pages 12 to 14.
113
See: Response, page 10.
114
See: Response, pages 10 and 11 and Annex 10 to Objection.
109

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associated with the community at issue have been registered as second leveldomain names without hindering any competition.115
157. Furthermore, according to Applicant, it is possible for Objector or others toapply and obtain “.games”, “.gamer” or “.videogame” in future rounds for gTLDs
since ICANN has recently decided not to place singular and plural versions of theapplied-for strings into contention sets.116
158. Finally, Applicant describes a number of “inaccurate or misleading” statements that Objector makes in support of its position.
(ii) Considerations of the Expert
159. The Expert has to decide on the likelihood of material detriment to the rights
or legitimate interests of the “Video Game Publishing Community” in the eventthat the application process ends with the adjudication of the string (“.game”) to
Applicant.
160. The Expert first notes that, in accordance with section 3.5.4 of the ICANN
Guidebook, “The objector must prove that the application creates a likelihood ofmaterial detriment to the rights or legitimate interests of a significant portion of thecommunity to which the string may be explicitly or implicitly targeted”.
161. In this regard, ICANN’s Guidebook clearly stresses that “an allegation of detriment that consists only of the applicant being delegated the string instead of theobjector will not be sufficient for a finding of material detriment”.117
162. Such section also provides the factors that could be used by an expert panel
in making this determination. These elements include, but are not limited to:(i)“Nature and extent of damage to the reputation of the community represented
by the objector that would result from the applicant’s operation of the applied-for
gTLD string”; (ii)“Evidence that the applicant is not acting or does not intend to act
in accordance with the interests of the community or of users more widely, including evidence that the applicant has not proposed or does not intend to instituteeffective security protection for user interests”;(iii)“Interference with the core activities of the community that would result from the applicant’s operation of the applied-for gTLD string”; (iv)“Dependence of the community represented by the objector on the DNS for its core activities”; (v)“Nature and extent of concrete or economic damage to the community represented by the objector that would result
from the applicant’s operation of the applied-for gTLD string”; and” (vi) “Level of
115

See: Response, page 13 and Annexes 12, 13 and 14 to Response. Applicant mentions:“game.com” used exclusively by Hasbro to promote its own board games, “games.com” used exclusively by AOL to promote its own video games and “videogames.com” used exclusively by CBS
Interactive to promote its GameSpot services.
116
See: Response, page 13 and Annex 15 to Response.
117
See: section 3.5.4. of the ICANN Guidebook.

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certainty that alleged detrimental outcomes would occur”.118
163. First, the Expert finds that the ICANN Guidebook does not call for “actual
damage” for an objection to be accepted. It establishes a lower bar, namely a“likelihood of material detriment”, logical consequence of the impossibility of assessing any damage when Applicant has yet to start operating the gTLD string.
164. Therefore, the standard that the Expert should apply to this issue is the“chance” that detriment will occur, although it requires a level of certainty. In otherwords, the standard of a “likelihood of material detriment” is, in the Expert’s opinion, equivalent to future “possible” damage.
165. Objector merely addresses the issue by stating vaguely that if the Application
is granted it will “threaten to severely hamper competition and consumer choice”.
Far from describing precisely the material detriment that the Application will cause
if successful, Objector fails to identify the possible harm that the community at
issue would suffer if ICANN granted Amazon the exclusive operation of the“.game” gTLD. Consequently, the Expert finds it difficult to determine by its own
means what specific potential detriments the community may suffer in the case at
hand.
166. In the Expert’s view, Objector has failed to address, let alone prove, any of
the suggested ICANN Guidebook factors mentioned above119 in order to make adetermination on this issue. In particular, (i) Objector fails to explain how Amazon’s operation of “.game” would result in material detriment to the reputation of
the community at issue; (ii) no evidence has been provided –nor stems from theApplication– that Applicant is not acting or does not intend to act in accordancewith the interests of the community or of users more widely; (iii) Objector provides
no evidence that Amazon’s operation of “.game” would interfere with ESA’s core
activities; (iv) Objector has not proven that the community it purports to represent
depends on the DNS for its core activities; (v) the Objection contains no information on concrete or economic damages that the “Video Game Publishing
Community” would suffer if the Application was granted; and (vi) Objector has
provided no adequate evidence that could allow the Expert to conclude that there
is a level of certainty in ESA’s allegations regarding the Application’s threat ofhampering competition or consumer choice.
167. As mentioned above120, according to the ICANN Guidebook, the types of
detriment or harm that a community may invoke in support of this ground include
economic detriment, concrete detriment, reputational detriment and interferencewith core activities.
168. In the Expert’s view, Objector has failed to prove any likelihood of material
118

See: section 3.5.4 of the ICANN Guidebook.
See: paragraph 162.
120
See: paragraph 162.
119

- 29 -

detriment to Objector’s community in this regard. In such condition, Objector’s
allegations appear as purely hypothetical and speculative.
169. Further, it appears that Objector’s underlying position is that Amazon, as acompetitor, will benefit from the operation of the applied-for string. This argument
is not enough, in the Expert’s view, to find that the Application creates likelihoodof material detriment to be protected under the applicable rules.
170. That been said, in the event that Applicant’s future conduct represents in any
way a limitation to competition within the industry, nothing prevents Objector or
any other party to pursue the remedies available under the applicable legislation.
171. Objector’s argument that international law prohibits exclusive ownership ofgTLDs appears to refer to ICANN’s new gTLD program policy and not to the present Application. The Expert is of the view that a community objection is not theappropriate mechanism to challenge ICANN’s new gTLD program.
172. Finally, regarding the alternative relief sought by Objector that the .game
TLD operate as an open registry121, the Expert notes that, pursuant to Article
21(d) of the Rules of Procedure122 and the definition of “Community Objection” in
Article 2(e)(iv) of said Rules, the Expert does not have the power to “require thatthe .game TLD operate as an open registry”.
173. In sum, the Expert concludes that the likelihood of material detriment to therights or legitimate interests of the “Video Game Publishing Community” has notbeen established. For this reason, the Objection must also fail.
VII. Conclusion
174. The Expert concludes that Objector has established that it has standing to
put forward a community objection against the application “.game” gTLD made by
Amazon.
175. However, Objector has failed to prove that (i) there is a strong association
between the community invoked and the applied-for string and (ii) the Application
creates a likelihood of material detriment to the rights or legitimate interests of asignificant portion of the community to which the string may be explicitly or implicitly targeted. Therefore, the Objection must fail.
VIII. Decision
121

See: Objection, page 18.
Article 21(d) of the Rules of Procedure provides that “(…) The remedies available to an Applicant
or an Objector pursuant to any proceeding before a Panel shall be limited to the success or dismissal of an Objection and to the refund by the DRSP to the prevailing party, as determined by the
Panel in its Expert Determination, of its advance payment(s) of Costs pursuant to Article 14(e) of
this Procedure and any relevant provisions of the applicable DRSP Rules”.

122

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176. Having read all the submissions and evidence provided by the Parties, forthe reasons set out above, and in accordance with Article 21(d) of the Rules ofProcedure, I hereby render the following Expert Determination:
I. The “Community Objection” which has been put forward by ENTERTAINMENTSOFTWARE ASSOCIATION in these proceedings is dismissed.
II. Applicant, AMAZON EU S.À.R.L., prevails.
III. The Centre shall refund Applicant, as the prevailing party, its advance paymentof costs made in connection with these proceedings.
Place of the proceedings: Paris, France
Date: February 5, 2014

Signature: _________________________
Prof. Dr. Guido Santiago Tawil
Expert