THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/405/ICANN/22

PROF. ALAIN PELLET, INDEPENDENT OBJECTOR(FRANCE)vs/
SILVER GLEN, LLC(USA)This document is a copy 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/405/ICANN/22

Generic Top-Level Domain Name Dispute
Administered by the International Centre for Expertise of theInternational Chamber of Commerce
Disputed Generic Top-Level Domain Name
.HEALTHCARE
Ground for the Objection
Community Objection--------------------------Prof. Alain Pellet (Independent Objector)
16 Avenue Alphonse de Neuville, 92380 Garches, France

Objector

SILVER GLEN, LLC
10500 NE 8th Street, Suite 350, Bellevue, WA 98004, USA

Applicant-----------------------------------------Expert Determination------------------------------------------

Expert Panel
Ms Teresa Cheng, SC
38/F Gloucester Tower, The Landmark, Central, Hong Kong

Table of Contents

THE PARTIES ............................................................................................1

PROCEDURE.............................................................................................2

SUMMARY OF PARTIES’ POSITIONS...................................................8

FINDINGS................................................................................................14
Allegation of Bias and Standing ..........................................................................19
Community Test...................................................................................................21

DECISION................................................................................................27iTHE PARTIES

1.

The Applicant is Silver Glen, LLC (“Applicant”), whose contact

person is Mr. Daniel Schindler, and whose address is 10500 NE 8th Street,
Suite 350, Bellevue, WA 98004, USA.

2.

The Applicant is represented by Mr. John M. Genga and Mr. Don

C. Moody, The IP & Technology Legal Group, P.C., dba New gTLD
Disputes, whose address is 15260 Ventura Blvd., Suite 1810, Sherman
Oaks,

CA

91403,

USA,

and

whose

email

addresses

arejohn@newgtlddisputes.com and don@newgtlddisputes.com.

3.

The Objector is Prof. Alain Pellet, Independent Objector(“Objector”), whose address is 16 Avenue Alphonse de Neuville, 92380
Garches, France.

4.

The Objector is represented by Ms. Héloïse Bajer-Pellet, whose

address is 15, Rue de la Banque, 75002 Paris, France and whose email
address is avocat@bajer.fr; by Mr. Daniel Müller, whose address is 20,
Avenue du Général de Gaulle, 78290 Croissy sur Seine, France andwhose email address is mail@muellerdaniel.eu; by Mr. Phon van den
Biesen, whose address is De Groene Bocht, Keizersgracht 253, 1016 EB
Amsterdam,

The

Netherlands

andPage 1 of 28

whose

email

addressisphonvandenbiesen@vdbkadvocaten.eu; and by Mr. Sam Wordsworth,whose address is 24 Lincoln’s Inn Fields, London, WC2A 3EG, United
Kingdom and whose email address is SWordsworth@essexcourt.net.

PROCEDURE

5.

This matter refers to the generic Top-Level Domain (“gTLD”)

string .healthcare applied for by the Applicant, and the Objector has filed
a Community Objection against this application. The dispute resolution
service provider (“DRSP”) is the International Centre for Expertise(“Centre”) of the International Chamber of Commerce (“ICC”).

6.

The applicable rules shall be the Rules for Expertise of the ICC(the “Rules”), supplemented by the ICC Practice Note on the
Administration of Cases (“ICC Practice Note”) under the Attachment toModule 3 of the gTLD Applicant Guidebook, New gTLD Dispute
Resolution Procedure (“Procedure”) of the gTLD Applicant Guidebook(“Guidebook”).

7.

Pursuant to Article 5(a) of the Procedure, the language of all

submissions and proceedings is English.

8.

Pursuant to Article 6(a) of the Procedure, all communications by

Page 2 of 28

the parties, the Expert Panel and the Centre were submitted by way ofemail.

9.

The Applicant submitted a gTLD application (the “Application”)

to ICANN (Application ID: 1-1492-32589) for the string .healthcare on
13 June 2012.

10.

Donuts Inc. ("Donuts") is the ultimate owner of the Applicant. In

the Declaration of Jonathan Nevett, the founder and Executive Vice
President of Donuts, he stated that Donuts was formed to acquire andoperate new gTLD domains and has, through its subsidiaries, applied for
307 new gTLDs.

11.

The purpose of the Application as stated in §18A of the

Application is:“…..
This TLD is attractive and useful to end-users as it better
facilitates search, self-expression, information sharing andthe provision of legitimate goods and services. Along withthe other TLDs in the Donuts family, this TLD will provide
Internet users with opportunities for online identities andexpression that do not currently exist. In doing so, the TLD
will introduce significant consumer choice and competition
to the Internet namespace – the very purpose of ICANN’s
new TLD program.
This TLD is a generic term and its second level names will
be attractive to a variety of Internet users. Making this TLD

Page 3 of 28

available to a broad audience of registrants is consistent
with the competition goals of the New TLD expansion
program, and consistent with ICANN’s objective of
maximizing Internet participation. Donuts believes in an
open Internet and, accordingly, we will encourage
inclusiveness in the registration policies for this TLD. In
order to avoid harm to legitimate registrants, Donuts will
not artificially deny access, on the basis of identity alone(without legal cause), to a TLD that represents a genericform of activity and expression.
.HEALTHCARE is a TLD attractive to registrants withaffinity or professional interest in promotion or treatment of
human health, and the methods of delivery and payment for
health care services. This includes, but is not limited to,those engaged in the treatment and prevention of disease andillness, the provision of primary and secondary care, thedissemination of health care information, and theadvancement of public health. The term HEALTHCARE is
also highly topical in the global discussion of healthcare
policy and administration, and is a useful forum for debate
and the exchange of ideas. We would operate this TLD in thebest interests of all registrants, and in a stable and securemanner.
……”12.

The Objector submitted its objection to the applied-for

string .healthcare on 12 March 2013 (“the Objection”) to the Centre.

13.

On 8 April 2013, the Centre registered the Objection forprocessing pursuant to Article 9(b) of the Procedure.

14.

On 27 May 2013, the Centre acknowledged receipt of the

Applicant’s response to the Objection dated 15 May 2013.

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15.

On 12 June 2013, the Chair of the Standing Committee of theCentre appointed Ms. Teresa Cheng, SC as sole member of the Expert
Panel ("the Panel") in this matter.

16.

On 30 July 2013, the Centre informed the Panel and the parties

that the estimated costs had been paid in full by each party and the Centre
confirmed the full constitution of the Expert Panel.

17.

Accordingly, the Centre proceeded with the transfer of the file to

the Panel on the same day.

18.

On 2 August 2013, the Objector requested to file an additional

statement.

19.

On 8 August 2013, the Applicant responded to the Objector’srequest of 2 August 2013.

20.

In an email dated 12 August 2013, the Panel allowed the

Objector’s request.

The Objector was allowed to file an additional

written statement on or before 19 August 2013, and the Applicant wasallowed to file a response to the Objector's additional written statement
on or before 26 August 2013.

21.

The Objector submitted an additional statement on 19 AugustPage 5 of 28

2013.

22.

The Applicant submitted a response to the Objector’s additional

statement on 26 August 2013.

23.

No hearing has taken place, nor was it requested by the parties.

24.

Article 21(a) of the Procedure provides that the Centre and thePanel shall make reasonable efforts to ensure that the Expert
Determination is rendered within forty-five (45) days of the constitutionof the Panel. The Centre considers that the Panel is constituted when theExpert is appointed, the parties have paid their respective advances on
costs in full and the file is transmitted to the Expert. In this case, thePanel was constituted on 30 July 2013. The Centre and the Panel wereaccordingly to make reasonable efforts to ensure that the Expert
Determination was rendered no later than 13 September 2013 (ascalculated in accordance with Articles 6(e) and 6(f) of the Procedure).
On 13 September 2013, pursuant to Article 21(b) of the Procedure, thePanel submitted a first draft of the Expert Determination to the Centre forscrutiny as to form before it was signed.

25.

On 4 December 2013, the Applicant submitted further statement

and information "regarding matters raised in the Objection and further

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submissions made by the Objector" to the Panel.

26.

On 6 December 2013 (Hong Kong time), the Objector responded

to the Applicant's submissions of 4 December 2013.

27.

On 12 December 2013, the Centre acknowledged receipt of the

Applicant's submission of 4 December 2013 and Objector's response of 5
December 2013 (Paris time), and referred the decision of whether toreopen the matter and accept further submissions by the parties to the
Panel.

28.

On 20 December 2013, the Panel informed the parties that "[thePanel does] not agree to re-open the proceedings for any further
statement of the Applicant to be admitted". The Panel's email of 20
December 2013 provides:"I refer to Mr Moody's email dated 4 December 2013 madeon behalf of the Applicant and Mr Pellet's email dated 6 [sic]December 2013 in response. I have considered thesubmissions made therein. Mr Pellet objects to the admissionof the new statement, set out in the email of 4 December
attaching further information, on the grounds that the
Applicant has contended that GAC advice is irrelevant to theobjection proceedings and that procedurally such statement
is not permitted under the Procedure.
Procedurally the statement has not been authorized and willneed permission for it to be admitted under Article 17(a) of
the Procedure. If this new statement and evidence isadmitted, pursuant to Article 4 of the Procedure, thePage 7 of 28

Objector must be given the opportunity to respond. The
statement was made as a result of the new circumstancesthat have arisen in October and November 2013 and istherefore not something that could be raised earlier. If such
evidence and statement is relevant and material to mydetermination by reason of the submissions of the parties, I
consider that I have the power to permit such statements tobe admitted under the Procedure. Whether the power is to be
exercised is of course a matter of discretion taking all
relevant circumstances into account.
However, the position of the Applicant is that such GAC
advice is irrelevant to the objection proceedings before me
as rightly pointed out by the Objector. I note also that the
point made in the new statement, if admitted, does notdeviate from this primary position. It reiterates thesubmission contending that if awarded the subject string, theApplicant would have to implement the GAC-recommended
safeguards to the extent ICANN has so adopted the GAC
Advice. In the premises, I agree with the Objector's
submissions and I do not agree to re-open the proceedings
for any further statement of the Applicant to be admitted andthat therefore dispenses with the need for the Objector to
respond accordingly.
……"

SUMMARY OF PARTIES’ POSITIONS29.

The Objector files the Objection on the ground of Community

Objection.

30.

In paragraph 6 of the Objection, the Objector states, “.Healthcare

targets the healthcare sector, which constitutes a clearly delineatedcommunity in the sense of the Guidebook. The opposition against the

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Application is substantial and the Application creates a likelihood ofmaterial detriment to the rights and legitimate interests of the members of
the healthcare community, the healthcare system in general and the
public interest goal of public health.”31.

The Objector submits that the Application targets the healthcarecommunity. The applicable test, by reference to the Implementation
Guideline P of the 2007 ICANN Final Report on the Introduction of New
Generic Top-Level Domains, is not limited to the assumptions and theintended use proposed for any given application but is primarily
concerned with the expectations of the average internet users and theirperception of and associations with the string.

32.

The term “healthcare” has a specific, clear and unequivocal

meaning and there is a “clearly delineated community” within themeaning of section 3.5.4 of the Guidebook. “Community” is to beinterpreted broadly and this string targets the healthcare sector and its
professionals.

33.

The objections that have been raised can be seen in comments on

ICANN’s public comment website posted on behalf of the American
Hospital Association and the Association of American Medical Colleges.
They represent, the Objector said, a significant number of stakeholders ofPage 9 of 28

the community in the North America region. They voice concerns that theprotection of the public and the users of a .healthcare TLD is an absolute
imperative and that this domain name needs to be operated in the interestof public health and safety. They are concerned with the lack of safetymeasures, the eligibility requirements or validation procedures to prevent
abuse of the .healthcare TLD. This will cause harm to the reputation of
the healthcare community and the damage to the healthcare systems andpublic health in general. The Association of Corporate Counsel voiced
similar concerns. The opposition is substantial.

34.

The material detriment, the Objector submits, results from theharm to the reputation of the community, the interference with thecommunity’s core activities, and economic or other concrete damage tothe community or significant portions of the community.

35.

The Applicant responded contending that an objector must act onbehalf of a “clearly delineated community” and the Objector does not.
The Objector, the Applicant says, is biased in favour of healthcareinterests and opposes those who would provide a forum for such topics on
the internet and has filed multiple objections to the applications by the
Applicant’s parent company and related companies.

36.

The Applicant submits that the Objector has failed to discharge thePage 10 of 28

burden of proof in relation to each of the four tests for a Community
Objection to be sustained.

37.

Further the Applicant contends that, as seen in Application Q18A,

the stated purpose of this TLD expressly does not “target” the string
towards any particular community. There is no need for an operator toapply as a community. Preventive measures have been proposed and there
is no evidence to conclude any detriment to the “community” (even if itsatisfies the Community test under section 3.5.4 of the Guidebook)referred to by the Objector. As to any registration eligibility criteria,
Application Q18A shows the registration of second level domains is to bewithout constraints of access, expression and innovation. This, theApplicant says is supported by ICANN as evidenced in the Preamble of
the Guidebook.

38.

The Objector filed an additional statement refuting the allegationof bias. He contends that as an independent objector he is not acting on
behalf of any community and that is clearly stated in section 3.2.5 of the
Guidebook.

39.

The Objector submits that the issue is whether the Applicant canuse and operate the .healthcare string in the way it describes in its
Application.

Page 11 of 28

40.

The Objector submits that the Targeting test under section 3.5.4 of

the Guidebook is met not by reference to whether the string describes thecommunity, but by establishing a “strong association” as set out insection 3.5.4 of the Guidebook between the applied-for string and thecommunity. As to the evidence needed to support the Detriment test
provided for under section 3.5.4 of the Guidebook, it is not proof of harm
but likelihood of detriment that has to be established. The Applicant’s
unwillingness to propose preventive measures and to control the actual
content of websites in the .healthcare gTLD and to ensure controlled
registration eligibility requirements shows that the detriment is likely toarise.

41.

In response to the Objector’s additional statement, the Applicant

reiterates the need for the Objector to discharge the burden of proof.
The ICANN Generic Names Supporting Organization (“GNSO”) Final
Guideline is referred to. It provides that “the objector must prove
sufficient evidence to allow the panel to determine that there would be alikelihood of detriment to the rights or legitimate interests of thecommunity or to the users more widely.” This was adopted in the
Guidebook by the ICANN Board as seen in section 3.5 of the Guidebook
expressly stating the burden of proof rests on the Objector.

42.

The Applicant contends that the “strong association” element does
Page 12 of 28

not look simply at the generic association between the string and the“community” in the eyes of the public. There is a need to consider what
the Applicant targets by reference to “[s]tatements contained in theapplication” and “[o]ther public statements by the applicant” as set out insection 3.5.4 of the Guidebook. The intent of the Guidebook by reference
to the discussion of the stakeholders is that the Community Objection
ground is a vehicle “to prevent the misappropriation of a string thatuniquely or nearly uniquely identifies a well-established and closely
connected group of people or organizations” as referred to in theSummary Report and Analysis of Public Comment - Applicant
Guidebook

Excerpts

andExplanatory

Memoranda(See

http://archive.icann.org/en/topics/new-gtlds/agve-analysis-public-comme
nts-04oct09-en.pdf at page 19).

The Objector has failed to satisfy theCommunity and Targeting tests.

43.

The Applicant reiterates that it has undertaken to implement eightprotective mechanisms in addition to the fourteen steps that ICANN
requires for new gTLDs and four further measures due to the sensitivityof this particular string.

These have been set out under "Our Protection"

at pages 8 and 9 of §18A of the Application. Further, the Applicant is
contractually bound by the Public Interest Commitments (PICs) made by
Donuts, on behalf of, inter alia, the Applicant.

Page 13 of 28

The Panel notes that

according to the ICANN PIC Specifications, the commitments made in
the PICs may include commitments not made in an application but towhich an applicant intends to commit.

These commitments will become

part of an applicant's new gTLD registry agreement.

FINDINGS

44.

Community Objection is defined in Article 2(e)(iv) of theProcedure as follows:“"Community Objection" refers to the objection that there issubstantial opposition to the application from a significant
portion of the community to which the string may be
explicitly or implicitly targeted.”

45.

Section 3.2.1 of the Guidebook states:“3.2.1 Grounds for Objection
A formal objection may be filed on any one of the following
four grounds:…...
Community Objection – There is substantial opposition to
the gTLD application from a significant portion of thecommunity to which the gTLD string may be explicitly or
implicitly targeted.
…...”

Page 14 of 28

46.

In the Guidebook, section 3.5 sets out the applicable standards forthe consideration and determination of the objection, and in so far as aCommunity Objection is concerned, section 3.5.4 provides for four tests:“The four tests described here will enable a DRSP panel todetermine whether there is substantial opposition from asignificant portion of the community to which the string may
be targeted. For an objection to be successful, the objector
must prove that:‧ The community invoked by the objector is a clearlydelineated community; and‧ Community opposition to the application issubstantial; and‧ There is a strong association between thecommunity invoked and the applied-for gTLD
string; and‧ The application creates a likelihood of material
detriment to the rights or legitimate interests of asignificant portion of the community to which thestring may be explicitly or implicitly targeted. Eachof these tests is described in further detail below.”47.

The Objector has to demonstrate that the community expressing

opposition can be regarded as a “clearly delineated community” asprovided for in section 3.5.4 of the Guidebook, and that a panel could
balance a number of factors to determine this, including but not limited
to:Page 15 of 28

“‧ The level of public recognition of the group as acommunity at a local and/or global level;‧ The level of formal boundaries around thecommunity and what persons or entities are
considered to form the community;‧ The length of time the community has been in
existence;‧ The global distribution of the community (this may
not apply if the community is territorial); and‧ The number of people or entities that make up thecommunity.”48.

Further there has to be proof of “substantial opposition” and thePanel is to balance a number of factors including but not limited to thoselisted in section 3.5.4 set out below in concluding whether that isestablished:“‧ Number of expressions of opposition relative to thecomposition of the community;‧ The representative nature of entities expressing
opposition;‧ Level of recognized stature or weight amongsources of opposition;‧ Distribution or diversity among sources of
expressions of opposition, including:yRegional

Page 16 of 28

ySubsectors of communityy

Leadership of communityyMembership of community‧ Historical defense of the community in othercontexts; and‧ Costs incurred by objector in expressing opposition,
including other channels the objector may haveused to convey opposition.”49.

The Targeting Test has to be satisfied by establishing a “strong

association between the applied-for gTLD and the community.” Thefactors that could be balanced include, but are not limited to, those listed
in section 3.5.4:“‧ Statements contained in application;‧ Other public statements by the applicant;‧ Associations by the public.”

50.

Finally, the Objector has to establish that the “application createsa 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. An allegation of detriment that consists only of theapplicant being delegated the string instead of the objector will not be
sufficient for a finding of material detriment.” A number of factors can be
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taken into account and they include:“‧ Nature and extent of damage to the reputation of thecommunity represented by the objector that would
result from the applicant’s operation of theapplied-for gTLD string;‧ Evidence that the applicant is not acting or does
not intend to act in accordance with the interests ofthe community or of users more widely, including
evidence that the applicant has not proposed ordoes not intend to institute effective security
protection for user interests;‧ Interference with the core activities of thecommunity that would result from the applicant’s
operation of the applied-for gTLD string;‧ Dependence of the community represented by theobjector on the DNS for its core activities;‧ Nature and extent of concrete or economic damage
to the community represented by the objector thatwould result from the applicant’s operation of theapplied-for gTLD string; and‧ Level of certainty that alleged detrimental
outcomes would occur.”51.

In accordance with section 3.5.4 of the Guidebook, each of thefour above-mentioned tests has to be satisfied for the Objection to besustained.

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Allegation of Bias and Standing

52.

Section 3.2.2.4 of the Guidebook provides, inter alia,"…To qualify for standing for a community objection, theobjector must prove both of the following:
It is an established institution - Factors that may beconsidered in making this determination include, but are notlimited to:‧ Level of global recognition of the institution;‧ Length of time the institution has been in existence; and‧ Public historical evidence of its existence, such as thepresence of a formal charter or national orinternational registration, or validation by agovernment, inter-governmental organization, or treaty.
The institution must not have been established solely in
conjunction with the gTLD application process.
It has an ongoing relationship with a clearly delineatedcommunity – Factors that may be considered in making thisdetermination include, but are not limited to:‧ The presence of mechanisms for participation in
activities, membership, and leadership;‧ Institutional purpose related to the benefit of theassociated community;‧ Performance of regular activities that benefit theassociated community; and‧ The level of formal boundaries around the community."

Page 19 of 28

53.

Whether a "clearly delineated community" is established is to be

determined in accordance with section 3.5.4 of the Guidebook.

54.

In any event, the plea of bias has no relevance to the qualification

for standing for a community objection under section 3.2.2.4 and 3.2.5 of
the Guidebook,55.

As to the standing of an Independent Objector, section 3.2.5 of the

Guidebook provides:"A formal objection to a gTLD application may also be filedby the Independent Objector (IO). The IO does not act onbehalf of any particular persons or entities, but acts solely inthe best interests of the public who use the global Internet.
In light of this public interest goal, the Independent Objector
is limited to filing objections on the grounds of Limited
Public Interest and Community."56.

The Applicant argues that the Objector is biased and lacks

standing.

57.

The Panel does not accept that there is bias by reason of theobjections that have been made by the Objector against the health-related
applications made by the Applicant or its subsidiaries or relatedcompanies. Each ground for objection will have to be viewed on its own
merit.

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58.

The direct or indirect association of the Objector with thehealthcare community, past or present, does not, without further
substantiation, justify a plea of bias either. There is no evidence before
the Panel that suggests that the Objector is biased or that there is ajustifiable doubt as to that and this plea is dismissed.

59.

As to standing, the Objector does not act on behalf of a“community.” However, section 3.2.5 of the Guidebook clearly
contemplates that an independent objector can raise such objection in thebest interest of the public who uses the global internet. The Objector has
raised the Objection in the interest of the internet users in general as
noted in the submissions and arguments which are summarized above.
The Panel therefore finds that the Objector has standing.

Community Test

60.

The first issue is whether there is a “clearly delineatedcommunity” that the applied-for string targets. The Applicant contends
that the string has to describe a clearly delineated community before theCommunity and Targeting tests can be satisfied. The Objector disagrees
and says that the purpose of this ground of objection is that the string
targeting a community is operated in a way so as not to cause material

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detriment to the rights of the community or a significant portion of thecommunity and as such the way in which the Applicant uses or operates
this gTLD is to be considered.

61.

The Panel finds that there is nothing from the Guidebook that

supports the Applicant’s contention that the string has to describe acommunity. If the string, whilst using a generic term, targets a specificcommunity that meets the standards set out in the Community test, theObjection, in so far as the Community test is concerned, can beestablished. The string does not have to describe a community for thisground to be established. The fact that it represents a generic subject does
not preclude opposition from being raised on this ground by acommunity.

62.

Nonetheless, the Objector still has to satisfy the Panel that there isa “clearly delineated community” which this string targets. It is clear fromsection 3.5.4 that the burden of proof rests on the Objector to establish
each of the four tests.

63.

The parties’ submissions refer the Panel to definitions ofhealthcare. Such definitions are broad and cover aspects of organizedprovision of medical care, maintenance and restoration of health throughmedical services, and prevention, treatment and management of illness.

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64.

The Panel finds that in the light of the Guidebook and the 2007

ICANN Final Report, the term “community” should be interpreted
broadly when considering whether the Community test can be established.
As submitted by the Objector, the “community” has to be determined byreference to some common characteristics, values or goals in order toconstitute a “clearly delineated community.” The Implementation
Guideline P highlighted one important criterion as to whether the groupof individuals or entities can be clearly delineated from others andwhether members of the “community [are] delineated from internet users
in general.” This is by reference to the common characteristics andparticularities of that group.

65.

The group of medical and paramedical professionals identified by

the Objector illustrates that there are individuals and bodies in thiscommunity. But this is not adequate to establish, on balance, that such
community is a “clearly delineated community.”66.

The Objector argues that the community is clearly delineated as it

comprises members who are specifically educated persons and comprises
medical and paramedical professionals. It is further contended that thecommunity is delineated by reference to the public interest mission thehealthcare community is entrusted with, or its general mission, i.e. toprovide medical services to the public. The community is also one that isPage 23 of 28

regulated by competent public authorities. The Objector concludes inparagraph 19 of the Objection, “[t]hese characteristics permit [one] todistinguish members of the healthcare community from other actors andparts of the health system, as well as from the public that use the global
internet.

Its individual and institutional members can be readily

identified, in particular through the necessary public approvals or
licencing requirements with which they must comply.”67.

The Panel accepts the test postulated by the Objector in

determining whether a group is a “clearly delineated community” within
the meaning of the Guidebook. This has then to be considered in thecontext of the specific string of .healthcare here.

68.

Given the broad and widely encompassing definition of healthcare,

the group of individuals and bodies related to or targeted by the string canencompass numerous stakeholders, professionals and non-professionals.
Further, the stakeholders could include multilateral organizations,
government agencies and non-governmental organizations concernedwith provision of healthcare services and information. It may also include,in the Panel’s view, those not generally recognised as professionals eventhough they may have interest or knowledge in healthcare. This lattergroup may have different practices in different states/localities such that

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there is no certainty universally as to whether such persons should be
included in such community. Bodies concerned with healthcare would, as
submitted by the Applicant, also include for-profit entities which do notnecessarily share the common goal, mission or interest as theinternational or governmental bodies. The types of persons or bodies
involved in the provision of healthcare services and information are
therefore diverse, wide-ranging and plentiful. They may have divergent
interests and goals.

69.

The Applicant’s submission that arguably the entire world

population has a fundamental interest in, and is impacted by .healthcare is
not without merit. It is not inconceivable that a member of the generalpublic may be said to be associated or even strongly associated with theapplied-for gTLD if he is concerned with healthcare issues for his own
well-being. The delineation between the “community” and the internet
users in general becomes blurred and indistinct.

70.

The public recognition of the group as a community is, on balance,

not distinct enough either. As noted above, the provision of healthcare
services from diverse stakeholders with different interest or goal tends tosuggest there is not a distinct body from the eyes of the public. It isconceivable also that there are disagreements as to who the members of
this community are given the wide-encompassing definition ofPage 25 of 28

healthcare.

71.

The global distribution of the “community” is widespread and may

also be premised on very different bases or standards. The identity or
qualifications of members within such a “community” is uncertain and onbalance diverse in the light of the circumstances. The limit is not closed;
and the boundaries are not clear. There is uncertainty as to what would
define the “community.”

72.

The

Government

Advisory

Council's("GAC")

Beijing

Communiqué dated 11 April 2013 confirms that .healthcare is a sensitive
string requiring particular safeguard measures. This however is notinconsistent with the provisional conclusions reached above. Whilst moststakeholders concerned with healthcare have to be subjected toregulated-entry requirements in multiple jurisdictions, it nonetheless does
not mean that the community is clearly delineated for the purposes of
establishing the Community test under this objection procedure.

73.

The Panel finds that for the above reasons, it is not possible “todistinguish members of the healthcare community from other actors andparts of the health system, as well as from the public that use the global
internet.” as suggested by the Objector in paragraph 66 above.

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74.

The Community Objection ground is not related to the interests of

the internet users generally but to those of a specific “community” whichshould be “clearly delineated.” The Panel is thus of the view that the
Objector has failed to establish the requirements of the Community test
given that a “clearly delineated community” has not been identified, as isrequired under section 3.5.4 of the Guidebook.

75.

As a result, given that the four tests of section 3.5.4 of the

Guidebook are cumulative, the Objection is dismissed.

76.

There is thus no need to consider the other three tests.

In passing

the Panel notes however that it accepts that substantial opposition is not
to be judged by reference to quantity but the quality, substance andimpact of the opposition made. The Panel also accepts that there is noneed to adduce evidence of harm to the extent contended by the Applicant.
Inferences may be drawn by the Panel to decide, based on the Application,
the evidence and submissions of the parties, as to whether there is a“likelihood” of material detriment.

DECISION

77.

In light of the above reasons and in accordance with Article 21(d)of the Procedure, I hereby issue the following Expert Determination:

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