THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/433/ICANN/50

THE FINANCIAL SERVICES ROUNDTABLE
(USA)
vs/
DOTFRESH INC(UAE)(Consolidated with case No. EXP/510/ICANN/127
AMERICAN INSURANCE ASSOCIATION (USA) vs/ DOTFRESH INC. (UAE))

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.

TABLE OF CONTENTS

1. INTRODUCTION …………………………………………………………….……………3
2. PROCEDURAL AND FACTUAL BACKGROUND …………………………….....…...4
3. THE GAC COMMUNIQUES AND ICANN IMPLEMENTATIONOF GAC ADVICE ………………………………………………………………………...5

4. REQUIREMENTS APPLICABLE TO THE OBJECTION ……………………………7
A. Applicable Rules
B. Requirements and standards
C. Published Expert Determinations

5. SUMMARY OF THE OBJECTION………………………………………………..….…12A.

B.

Standing to object
a. An established institution
b. Ongoing relationship with the communityc. The community is clearly delineatedRequirements on the merits
a. There is substantial opposition to the Applicationb. There is a strong association between the string and the communityc. The Application is likely to cause material detriment

6. SUMMARY OF THE APPLICANT’S RESPONSE ………………..…………….…….15
A. Lack of Standing
B. Requirements on the merits

7. FINDINGS OF THE EXPERT ……………………………………….…………………..18
A. The Objector’s standing to object
a. The Objector is an established institution
b. Ongoing relationship with a clearly delineated communityc. Ongoing relationship
B. Test 1: Clearly delineated community
C. Test 2: Substantial opposition by the community
D. Test 3: Strong association between community and stringa. Statements contained in the Applicationb. Level of association by the public
E. Test 4: Likelihood of material detrimenta. Track record of Directi group in the maintenance of registries
b. Protection provided by the safeguards established in the Application

8. CONCLUSION………………………….………………………………………………….36
9. COSTS ……………………………………………………………………………………...37
DECISION ………………………………………………………………………………….....38

1

List of Abbreviations

ApplicantApplication
APWG
Attachment
Beijing GAC Advice
CentreCPE
DirectiExpert Determination
fTLD Registry Services
GAC
GFIA
gTLD
Guidebook
ICANN
ICANN Final Report
Objection
Objector
OECD
PIC
Proceedings
Procedure
Requirements
Rules
Toronto GAC Advice
UDRP

Dotfresh Inc.
Appl. I.D. 1-1063-32835 <.insurance>
Anti-Phishing Working Group
Attachment to Module 3 of the gTLD Applicant Guidebook
GAC communiqué issued in Beijing on 11 April 2013
International Centre for Expertise of the International Chamber of Commerce
Community Priority Evaluation
Parent company of the Applicant
Expert Determination
fTLD Registry Services LLC: Affiliate company of the Objector which has
filed a community application for the string .insurance
ICANN's Government Advisory Committee
Global Federation of Insurance Associations
generic Top Level Domain
gTLD Applicant Guidebook
Internet Corporation for Assigned Names and Numbers
Final Report by the ICANN Generic Names Supporting Organization dated
August 8, 2007
community objection filed by The Financial Services Roundtable
The Financial Services Roundtable
Organization for Economic Cooperation and Development
Dotfresh’s Public Interest Commitment
Exp. 433/ICANN/50
Module 3 of gTLD Applicant Guidebook
The standing to file an objection and the four tests on the merits that the
Objection must meet to be successful
Rules for Expertise of the ICC
GAC communiqué issued in Toronto on 17 October 2012
Uniform Domain Dispute Resolution policy: an arbitration-like process set
up by ICANN to resolve disputes over domain name registrations

2

1.

INTRODUCTION

1.

This expert determination [“Expert Determination”] is issued pursuant to the proceedings
being held before the International Centre for Expertise [“Centre”] of the International
Chamber of Commerce Centre designated as EXP/433/ICANN/50 [“Proceedings”]1.

2.

The Proceedings deal with the community objection [“Objection”] filed by The Financial
Services Roundtable [“Objector”] to the application registered by Dotfresh Inc. [“Applicant”]
before the Internet Corporation for Assigned Names and Numbers [“ICANN”] for the newgeneric top level domain [“gTLD”] .insurance (Appl. I.D. 1-1063-32835) [“Application”].

3.

The Objector – The Financial Services Roundtable – is a “leading advocate on behalf of thefinancial services community, including insurance members”2. The Objector’s address andrepresentative are:
Mr. Richard Whiting
Executive Director and General Counsel
1001 Pennsylvania Avenue, NW Suite 500 South
Washington D.C. 20004 USA
Ph: (+ 1) 202.589.2413
rich@fsround.org

4.

The Applicant – Dotfresh Inc. – is a wholly-owned subsidiary within the Directi group 3[“Directi”], incorporated under the laws of the Republic of Seychelles. The Applicant’s address
and representative are:
Mr. Brijesh Harish Joshi
Dotfresh Inc.
F/19, BC1, Ras Al Khaimah FTZ, P.O. Box # 16113, Ras Al Khaimah,
Ras Al Khaimah – 16113, AE
Ph: + 14153580831
dotinsurance@radixregistry.com

5.

The Expert is:
Mr. Juan Fernandez-Armesto
Armesto & Asociados
General Pardiñas 102
Madrid 28006 – Spain
Ph: (+ 34) 91.562.16.25
jfa@jfarmesto.com

1

This case is consolidated with EXP/510/ICANN/127. However, each of the objections is being issued aseparate Expert Determination.
2
Objection, p. 6.
3
Application, answer, Q 29.

3

2.

PROCEDURAL AND FACTUAL BACKGROUND

6.

On 13 June 2012 the Applicant filed with ICANN an application requesting the gTLD
.insurance.

7.

On 13 March 2013 the Objector filed an Objection with the Centre, which gave rise to thepresent Proceedings.

8.

On 23 April 2013 the Centre informed the parties that the case had been consolidated with
EXP/510/ICANN/1274.

9.

On 3 May 2013 ICANN declared that the Application had passed the Initial Evaluation.

10.

The Applicant filed its Response on 7 June 2013.
Appointment of Expert

11.

The Expert was appointed on 28 July 2013 by the Chairman of the Standing Committee of theCentre pursuant to article 3(3) of Appendix I to the Rules.
Main procedural steps of the Proceedings

12.

The file was transferred to the Expert on 5 August 2013 following the payment in full by theparties of the requested advances on costs and the confirmation of the constitution of the panelby the Centre.

13.

By letter of 12 August 2013 the Expert inquired whether the parties required further
submissions5.

14.

On 20 August 2013 the Expert authorised additional submissions, providing, as requested anddiscussed with the parties, a period of 30 days for the Objector’s additional submissions (endingon 18 September 2013) and a subsequent 30 days for the Applicant’s response (ending on 18
October 2013).

15.

On 27 August 2013, after consultation with the parties, the Expert delivered to the parties a
Mission Statement, reflecting the basic aspects of the Proceedings.

16.

The Objector delivered the Additional Submissions on 18 September 2013.

17.

On 19 September 2013, the Objector delivered a letter from the Global Federation of Insurance
Associations [“GFIA”] endorsing the Objector’s position, and requesting the panel to allow
inclusion of such letter in the consolidated proceeding. The Applicant made no objection to such
request, and on 27 September 2013 I authorised the inclusion of the GFIA letter into theProceedings.6

4

The Applicant was requested by the Centre to file a response for each objection. The Expert was given thediscretion to issue one or two Expert Determinations. The Mission Statement provided that there would be twoExpert Determinations.
5
The Objector requested further submissions. The Applicant did not object, but requested the opportunity to
reply, which was granted by the Expert. Neither party requested a hearing.
6
By email of said date.

4

18.

The Applicant filed its Additional Submissions on 18 October 2013.

19.

The language of the Proceedings has been English7, which was the language of all
documentation submitted, and all communications have been delivered by email8.
Delivery date20.

Article 21(a) of the Attachment 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[p]anel”. The Centre considers that the panel is constituted when the Expert is appointed, theparties have paid their respective advances on costs in full and the file is transferred to theExpert. In this case, the panel was constituted on 5 August 2013 (i.e. the date on which the file
was transmitted to the Expert). The Centre and the Expert were accordingly to make reasonable
efforts to ensure the determination was rendered no later than 19 September 2013 (as calculated
in accordance with articles 6(e) and 6(f) of the Attachment)9. Pursuant to article 21(b) of the
Attachment, the Expert submitted the determination in draft form to the Centre for scrutiny as toform before it was signed.

3.

21.

THE GAC COMMUNIQUES AND ICANN IMPLEMENTATION OF GACADVICEICANN’s Governmental Advisory Committee [“GAC”]10 issues periodically (after its
meetings) communiqués to ICANN in relation to the gTLD process providing, inter alia, advice
on sensitive issues. Of special relevance to this expert determination are:-

The Toronto communiqué, in relation to the enforcement of commitments made byapplicants in their applications (A), and-

The Beijing communiqué, in relation to the issue of protections for sensitive strings (B),which I review below.

A.

The enforcement of commitments made in applications – Toronto communiqué

22.

On 17 October 2012, the GAC issued the GAC Communiqué – Toronto [“Toronto GAC
Advice”], in which, inter alia, GAC requested a written briefing from the ICANN Board on
how ICANN would ensure that any commitments made by applicants, in their applications orsubsequent changes, would be overseen and enforced by ICANN.

23.

Specifically, the GAC advised the ICANN Board that “it is necessary for all these statements ofcommitments and objectives to be transformed into binding contractual commitments, subject tocompliance oversight by ICANN”11.

7

As required by article 5(a) of the Attachment.
As required by article 6(a) of the Attachment.
9
Pursuant to article 17 of the Attachment, the Expert authorized the request made by the parties to deliver
additional submissions, and fixed the calendar for the delivery of the documentation and of the expert
determination in accordance with such requests.
10
A committee formed to consider and provide advice on the activities of ICANN as they relate to concerns ofgovernments – Procedure, Module 3, 3-2.
8

5

24.

In response to such request12, the ICANN Board implemented the Public Interest Commitments[“PIC”] Specification Proposal. In summary, under this scheme, applicants may identify
commitments made in their applications (or new ones in addition to such commitments) in aschedule (designated Specification 11) to the Registry Agreement to be signed with ICANN.
Pursuant to the terms of the Registry Agreement, said commitments become part of theagreement and are enforceable by ICANN.13

25.

The Applicant delivered on 31 May 2013 a PIC in relation to the .insurance Application. The
PIC stated:“Dotfresh Inc. respectfully submits the following Public Interest Commitment for the.Insurance registry:
1.
2.

3.
4.
5.

26.

General Names (as described in section 18b sub-section 4.1 of the application) will
be available for registration to institution related to the insurance industry only. For
example: insurance carriers, agents, brokers, service providers.
Each registered general domain name must be similar to the business name, common
name, common law name, trademark name, corporate name of registrant or its
products or services or offerings.
Both of the above criteria along with the identity of the registrant must be validated
before a general domain name is activated.
The above applies to general domain names whether registered during sunrise,
landrush or general availability.
Proxy registrations will not be permitted in .Insurance.”

The terms of the PIC are intended to be reflected in Specification 11 of the Registry Agreement.
B.

The sensitive strings – Beijing communiqué27.

On 11 April 2013 the GAC issued the GAC Communiqué – Beijing [“Beijing GAC Advice”],
where it stated that “to reinforce existing processes for raising and addressing concerns the
GAC is providing safeguard advice to apply to broad categories of strings (see Annex I)”.

28.

In Annex I to the Beijing GAC Advice the GAC advised the ICANN Board that:“Strings that are linked to regulated or professional sectors should operate in a way that is
consistent with applicable laws. These strings are likely to invoke a level of implied trustfrom consumers, and carry higher levels of risk associated with consumer harm… [I]n thecurrent round the GAC has identified the following non-exhaustive list of strings that theabove safeguards should apply to: …….
Financial: …insurance”.

11

Toronto GAC Advice section IV.1. This is not applicable to community applications, as the registry operator
has requirements in its registry agreement to maintain community based policies specified in the application.
Module 5, 5-14.
12
Letter from S. Crocker to GAC dated 16 January 2013.
13
Section 2.17 of the standard Registry Agreement states:“2.17 Additional Public Interest Commitments. Registry Operator shall comply with the public interest
commitments set forth in Specification 11 attached hereto (“Specification 11”).”

6

29.

The GAC further advised the ICANN Board in Annex I that:“1. In addition, some of the above strings may require further targeted safeguards, toaddress specific risks, and to bring registry policies in line with arrangements in place offline. In particular, a limited subset of the above strings are associated with market sectors
which have clear and/or regulated entry requirements (such as: financial, gambling….) in
multiple jurisdictions, and the additional safeguards below should apply to some of thestrings in those sectors:[…]
6. At the time of registration, the registry operator must verify and validate the registrants’authorizations, charters, licenses and/or other related credentials for participation in that
sector.
7. In case of doubt with regard to the authenticity of licenses or credentials, Registry
Operators should consult with relevant national supervisory authorities, or their equivalents.
8. The registry operator must conduct periodic post-registration checks to ensure
registrant’s validity and compliance with the above requirements in order to ensure they
continue to conform to appropriate regulations and licensing requirements and generally
conduct their activities in the interests of the consumers they serve”14.

4.

30.

A community objection permits an application to be rejected if a significant part of thecommunity to which the string is explicitly or implicitly targeted presents substantial opposition
and there is likelihood of material detriment to the rights or legitimate interests of a significant
portion of the members of the community. The determination is to be made by an expert panel15.
A.

31.

Applicable rules

In its review of a community objection, the panel will apply primarily:
-

-

32.

REQUIREMENTS APPLICABLE TO THE OBJECTION

Module 3 (Objection Procedures) [“Procedure”] and its attachment [“Attachment”] of
the gTLD Applicant Guidebook [“Guidebook”] (other parts of the Guidebook will also
be helpful as reference, including specifically Module 4 (String Contention
Procedures)16).
Rules for Expertise of the ICC [“Rules”].
Appendix III to the Rules, Schedule of expertise costs for proceedings under theProcedure.
ICC Practice Note on the Administration of Cases under the new gTLD Dispute
Resolution Procedure.

Finally, the Procedure refers to the 8 August 2007 Final Report by the ICANN Generic Names
Supporting Organization [“ICANN Final Report”], which includes the rationales of thedifferent objections17. Thus, the panel can draw additional guidance from the ICANN Final
Report.

14

Beijing GAC Advice, p. 10.
Recommendation 20 – ICANN Final Report: “An application will be rejected if an expert panel determinesthat there is substantial opposition to it from a significant portion of the community to which the string may be
explicitly or implicitly targeted”.
16
On the reference value of Module 4, see paragraph 51 for further analysis.
17
Procedure, 3-5.
15

7

33.

I now detail below certain relevant aspects of each of these rules.
B.

Requirements and standards

34.

Pursuant to the Procedure, a community objection must satisfy the following requirements to be
successful:

35.

First: the Objector must prove that it has standing to object18 (a).

36.

Second: having proven standing, the Objector must demonstrate that the following four tests
regarding the merits are complied with19 (b):-The community invoked by the Objector is a clearly delineated community;
The community opposition to the application is substantial;
There is a strong association between the community invoked and the applied-for string;andThe application creates a likelihood of material detriment to the rights or legitimate
interests of a significant portion of the community to which the string may be explicitly
or implicitly targeted.

The standing and the four tests described below will be referred to as the “Requirements”.

37.

To assist the panel in its task, the Procedure identifies for each of the Requirements a nonexhaustive list of factors which the panel may consider. The panel is authorised to balance therelevant factors (though not all factors must be established) and to take other factors into
consideration20.

38.

In making its determination, the panel may refer to and base its findings upon the statements
and documents submitted by the parties and/or any rules or principles that it determines
applicable21.

39.

The panel must bear in mind that it is the Objector who bears the burden of proving that theRequirements and standards applicable to the objection are met22.
a.

40.

Standing to object

The first step is to qualify for standing to file a community objection. In order to have standing,
the Objector must prove that it is an established institution and that it has an ongoing
relationship with a clearly delineated community.

18

Procedure, 3-5.
Procedure, 3-22/25.
20
Procedure, 3-22/25.
21
Attachment, article 20(b)22Attachment, article 20(c)
19

8

41.

To evaluate whether the Objector is an established institution, the panel may consider, among
others, the following factors23:
-

42.

43.

To evaluate whether there is an ongoing relationship with a clearly delineated community, thepanel may consider, among others, the following factors24:-

The presence of mechanisms for participation in activities, membership and leadership;
Institutional purpose related to the benefit of the associated community;
Performance of regular activities that benefit the associated community; andThe level of formal boundaries around the community.

b.

Requirements on the merits

If the Objector is found to have standing, then it must pass the following four tests on the
merits.

(i)
44.

Level of global recognition of the institution;
Length of time the institution has been in existence; andPublic historical evidence of its existence, such as the presence of a formal charter or
national or international registration, or validation by a government, inter-governmentalorganisation, or treaty; the institution must not have been established solely in
conjunction with the gTLD application process.

First test: the Objector must prove that the community is clearly delineated

To evaluate whether the community is clearly delineated25, the Procedure provides that thepanel may consider, among others, the following factors:--

The level of public recognition of the group as a community at a local and/or global level;
The level of formal boundaries around the community 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); andThe number of people or entities that make up the community.

(ii)

Second test: the Objector must prove that the community opposition is substantial-

45.

This second Requirement will only be analysed if the first test is passed, i.e. if a clearlydelineated community is found.

46.

In considering whether the second test is met, the Procedure provides that the panel may
consider, among others, the following factors26:-

The number of expressions of opposition relative to the composition of the community;
The representative nature of entities expressing opposition;

23

Procedure, 3-8.
Procedure, 3-8.
25
Procedure, 3-22/23.
26
Procedure, 3-23.
24

9

-

-

The level of recognised stature or weight among sources of opposition;
The distribution or diversity among sources of expressions of opposition, including:·
Regional·
Subsectors of community·
Leadership of community·
Membership of community
The historical defence of the community in other contexts; andThe costs incurred by the objector in expressing opposition, including other channels theobjector may have used to convey opposition.

(iii) Third test: the Objector must prove the existence of a strong association
47.

If substantial opposition to the application is evidenced, the Objector must then prove that there
is a strong association between the applied-for string and the community invoked27.

48.

To evaluate the existence of a strong association between the string and the community, thepanel may consider, among others, the following factors28:-

Statements contained in the application;
Other public statements by the applicant; andAssociations by the public.

(iv) Fourth test: the Objector must prove likelihood of detriment to rights or legitimate
interests

49.

Finally, if a strong association between community and string has been established, the Objector
must prove that the application creates the likelihood of material detriment to the rights orlegitimate interests of a significant portion of the community to which the string may be
explicitly or implicitly targeted29.

50.

To evaluate the existence of material detriment to the members of the community, the Procedureadvises the panel to use, among others, the following factors30:--

Nature and extent of damage to the reputation of the community represented by theobjector that would result from the applicant’s operation of the applied-for gTLD string;
Evidence that the applicant is not acting or does not intend to act in accordance with theinterests of the community or of users more widely, including evidence that the applicant
has not proposed or does not intend to institute effective security protection for userinterests;
Interference with the core activities of the community that would result from theapplicant’s operation of the applied-for gTLD string;
Dependence of the community represented by the objector on the DNS for its core
activities;
Nature and extent of concrete or economic damage to the community represented by theobjector that would result from the applicant’s operation of the applied-for gTLD string;and27

Procedure, 3-23/24.
Procedure, 3-24.
29
Procedure, 3-24.
30
Procedure, 3-24.
28

10

-

Level of certainty that alleged detrimental outcomes would occur.
***

51.

Module 4 of the Guidebook (String contention procedures) provides criteria to review and scorea community-based application. It shares some common concepts with the community objection
procedure (such as community establishment and nexus between the string and the community),
though its standards are stricter, and though it can provide some guidance, it can only be taken
as a general reference31.

52.

ICANN provides the following guidelines in relation to Recommendation 20 of its Final Report:“Guidelinesa) Substantial – in determining substantial the panel will assess the following: signification
portion, community, explicitly targeting, implicitly targeting, established institution, formal
existence, detriment.
b) Significant portion – in determining significant portion the panel will assess the balance
between the level of objection submitted by one or more established institutions and thelevel of support provided in the application from one or more established institutions. The
panel will assess significance proportionate to the explicit or implicit targeting.
c) Community – community should be interpreted broadly and will 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.
d) Explicitly targeting – explicitly targeting means there is a description of the intended useof the TLD in the application.
e) Implicitly targeting – implicitly targeting means that the objector makes an assumptionof targeting or that the objector believes there may be confusion by users over its intendeduse.
f) Established institution – an institution that has been in formal existence for at least 5
years. In exceptional cases, standing may be granted to an institution that has been in
existence for fewer than 5 years.
Exceptional circumstances include but are not limited to a re-organization, merger or an
inherently younger community.
The following ICANN organizations are defined as established institutions: GAC, ALAC,
GNSO, ccNSO, ASO.
g) Formal existence – formal existence may be demonstrated by appropriate public
registration, public historical evidence, validation by a government, intergovernmentalorganization, international treaty organization or similar.
h) Detriment – the objector must provide sufficient evidence to allow the panel todetermine that there would be a likelihood of detriment to the rights or legitimate interestsof the community or to users more widely”.

31

Thus, Module 4 states that “It should be noted that a qualified community application eliminates all directly
contending standard applications, regardless of how well qualified the latter may be. This is a fundamental
reason for very stringent requirements for qualification of a community-based application, as embodied in thecriteria below. Accordingly, a finding by the panel that an application does not meet the scoring threshold toprevail in a community priority evaluation is not necessarily an indication the community itself is in some way
inadequate or invalid.” – Module 4, 4-9.

11

C.

53.

Published Expert Determinations

Both parties have made references to other published expert determinations. Though otherexpert determinations are not binding, well-argued analysis may have persuasive value and legal
certainty will be enhanced if in similar situations, experts base their findings on analogous
principles. On this basis, I may take any such references into consideration if deemed
appropriate.

5.

SUMMARY OF THE OBJECTION54.

The Objector claims that the granting of the string .insurance to the Applicant will result inmaterial detriment to the insurance community32, and considers that the Application should be
rejected.

55.

The Objector claims that it has standing to object (A), and meets the four tests on the merits
required by the Procedure (B).
A.

56.

The Objector must prove that it is an established institution (a) and that is has an ongoing
relationship (b) with a clearly delineated community (c).
a.

57.

Standing to object

An established institution

To establish standing in this case, the Objector points out that it is an organisation with a longexistence. The first of its predecessor organisations was formed in 1912, and in 1999 theorganisation’s mission was broadened to represent the interests of integrated financial providers(i.e., banks, insurance and securities). Today the organisation includes approximately 100 of thelargest integrated financial services companies operating in the U.S., including 21 major
insurance institutions33.
b.

Ongoing relationship with the community

The Objector claims that it has an ongoing relationship with the insurance community. This isevidenced by its mission to unify the leadership of large integrated financial companies,
including insurance, and the various activities developed on behalf of the community, including
a series of programs and working groups; and promoting a trade association of insurance agentsand brokers34.
c.

58.

The community is clearly delineated

The Objector avers that the insurance community is clearly delineated by virtue of the formal
regulatory boundaries imposed in all member countries of the Organization for Economic
Cooperation and Development [“OECD”]35. Further evidence of this boundary is the general

32

Objection, p. 7.
Objection, p. 4.
34
Objection, p. 6.
35
Objection, p. 8
33

12

restriction on the use of the term “insurance” only to the entities meeting the legal requirements
to operate in the insurance market36.

59.

The Objector points out that the Applicant itself acknowledged that the insurance string was
associated with market sectors “which have clear and/or regulated entry requirements in
multiple jurisdictions….”37.

60.

According to the Objection, other factors that help delineate the community are:

61.

(i)

The existence of standard setting organisations within the insurance community.
Specifically, the International Organization for Standards (ISO) has published the ICS(International Classification for Standards) which is “intended to serve as a structure forcatalogues of international, regional and national standards and other normative
documents and as a basis for standing-order systems for international, regional andnational standards”. Insurance services are specifically enumerated therein38.

(ii)

The existence of international organisations that have been created to establish bestpractices and coordinate with standard setting bodies within the insurance community.
Examples include: the International Association of Insurance Supervisors (IAIS), theEuropean Insurance and Occupational Pensions Authority (EIOPA) and the International
Insurance Foundation (IIF)39.

B.

Requirements on the merits

The Requirements on the merits consist of four tests, the first of which (the existence of aclearly delineated community) has already been addressed in the previous section. The
Objector’s position with respect to the remaining three tests is as follows.
a.

There is substantial opposition to the Application

62.

The Objector claims that, from among this clearly delineated community, there is substantial
opposition to the Application. In addition to the opposition as represented by the Objector, andother entities40, which have delivered letters expressing their support for the Objector’s
opposition (including one from the Global Federation of Insurance Companies41), the Expert
should consider the very substantial international support to the fTLD Registry Services LLC[“fTLD Registry Services”] community application42.

63.

Moreover, the Objector has a long standing involvement in advocating/defending the insurance
and financial communities in various fora. 43

36

Objection, p. 8.
Add. Sub., p. 2
38
Objection, p. 8
39
Objection, p. 940Annexed as annex C to the Objection.
41
Letter of 19 September 2013.
42
Objection, p. 9. Add. Sub., p. 4.
43
Objection, p. 10
37

13

b.

There is a strong association between the string and the community

64.

The Objector claims that there is a strong association between the community and the string.
This is due to the existence of rules or regulations at local and/or national level which
standardise the criteria to be applied for an entity to qualify as an insurance company44.

65.

The Objector suggests that the text of the Application itself recognises the nature of thiscommunity and its participation45.
c.

The Application is likely to cause material detriment66.

The Objector submits that allowing the Applicant to operate the string creates the likelihood thatthe community will experience material detriment for the following reasons:67.

The first reason is that the Applicant is part of the Directi family of companies, which have apoor track record in maintenance of domain registries. In this regard, The Objector notes that:
-

-

-

68.

Independent analysis shows that Directi accounted for the largest percentage of malicious
domain name registrations of any named registrar; even using a normalised metricmethod, Directi is the only ICANN accredited registrar that ranks in the top ten of theAnti-Phishing Working Group [“APWG”] report “Global Phishing Survey: Trends andDomain Name Use in 1H2012 APWG’s top ten phishing registrars46. The Objector
submits that there is a likely causality between the lack of sufficient safeguards inDirecti’s registration process and the corresponding large percentage of malicious domainnames47.
Public Domain Registry (PDR), another Directi entity providing domain registration
services, has failed to proactively address cybersquatting and other abusive registration
practices directed at the financial services sectors. This has led to numerous documented
instances in which members of the insurance community have had to expend financial
and legal resources to file a UDRP (i.e. ICANN’s Uniform Dispute Resolution Procedure
to resolve disputes over domain name registrations [“UDRP”]) proceeding to combat
abusive domain name registrations sponsored by PDR48.
At least one other applicant has called into question the qualifications of the
Applicant/Radix Registry to operate any registry49, alleging use of the proxy services tomask the identity of cybersquatters50, through its service PrivacyProtect.org.

The second reason is that where the registry operator has no meaningful and on-going
relationship with the community targeted by the gLTD, changes in ownership of the owner of

44

Objection, p. 10.
Specifically, the Objector states: “Based on the following excerpt text and other references to “community”
from Dotfresh’s application, it would appear it recognizes the nature of this community and its participation,“.INSURANCE will also allow registrants in the insurance community to differentiate themselves.” Objection,
p. 10.
46
Objection, p. 11.
47
Objection, p. 12.
48
Objection, p. 13.
49
Objection, p. 13.
50
Objection, p. 13.
45

14

the right to the string can result in modifications of the safeguards/representations made in theoriginal application51.

69.

The third reason is that the safeguards established in the Application to restrict the use of thestring to insurance related companies are inadequate, and exclude from application of therestrictive policies generic domain names. As a consequence, generic names may be registeredby third parties that are not regulated insurance entities. Allowing the registration of these key
resources by members outside the community represents a real and distinct harm to theinsurance community52.

70.

The fourth reason is that if the Applicant is given the right to operate .insurance, members of theinsurance industry would likely feel the need to register a substantial number of purely
defensive and unnecessary registrations to protect the variations of names in their brands. This
defensive action, the need to maintain a constant monitoring of the internet and to take remedialaction (letters of warning, UDRPs, etc.) would result, according to the Objector, in substantial
costs to the community every year53.

6.

71.

Responding to the Objection, the Applicant claims that the Objector has failed to prove standing(A), and has not proven any of the four tests on the merits (B).
A.

72.

Lack of Standing

The Applicant alleges that the Objector lacks standing because it has failed to prove that it has
an ongoing relationship with a delineated community, for various reasons, namely:
-

-

B.

73.

SUMMARY OF THE APPLICANT’S RESPONSE

A clear delineated community is required by the Guidebook standards. There is nocommunity as defined by the Guidebook, and in any event it is not clearly defined.
Consequently, there can be no on-going relationship therewith54.
Even if a community is assumed to exist, the Objector has failed to evidence a
relationship: the Applicant acknowledges the relationship with the 21 insurance
institutions that form its membership, but the alleged insurance community does notconsist only of these institutions. All the activities described are specific to the U.S.
alone. The Objector has failed to evidence any relationship with a single insurancecompany outside the U.S. 55.
Requirements on the merits

On the merits, the Applicant submits that the Objector has not been able to meet any of the four
tests for several reasons, namely:

51

Objection, p. 12, citing as an example the string .sport, which originated as a professionals string and has
produced sextoys.pro, online casino.pro, etc.
52
Add. Sub., p. 8.
53
Objection, p. 14.
54
Response, p. 6.
55
Response, p. 6

15

a.

74.

In order to demonstrate a clearly delineated insurance community, as per the Guidebook, theObjector must demonstrate56:
-

75.

76.

No clearly delineated community

Cohesion amongst all insurance companies and evidence that they tend to “unite and stick
together for a common cause”;
Awareness and recognition among the insurance companies that they are actuallymembers of such alleged community;
Recognition among the public of the existence of an insurance community;
A clear and non-dispersed definition of a member of such an insurance community.

The Objector has not identified a clearly delineated community as evidenced by the following57:-

No cohesion: Module 4 of the Guidebook states that the expression “community” hasevolved considerably from its Latin origin – “communitas” meaning “fellowship” which
implies more of cohesion than a mere commonality of interest. There is no evidence
existing or presented of cohesion between most insurance companies around the world,
let alone every single insurance company in the world.

-

No awareness: a visit to 20 sites of the world’s leading insurance companies reveals thatnone mention an “insurance community”, though some mention “insurance industry” or“insurance sector”. The Objector itself acknowledges that there is an insurance
industry/insurance sector, but none of its communications refer to an insurance
community.

-

No public recognition: a google search for the term “insurance community” does notbring up any single website that mentions the existence of an insurance community.

-

Delineation: there are innumerable dissimilarities in what companies can be considered as
an insurance company across the world. Key differences lie in the required legal form,business plans, and list of documentations, minimum capital requirements and solvency
margin requirements. Consequent to this, an insurance company in Japan is notconsidered an insurance company in Luxembourg. Therefore the purported insurance
community is not clearly delineated.

The Objector did not present any evidence proving the above.
b.

No substantial opposition

77.

The Applicant submits that the Objector has failed to evidence substantial opposition by thecommunity58:

78.

As its first argument, the Applicant states that the Objector provides only seven letters opposing
the Application; of these, four are from actual insurance companies, and the rest from insurance
associations which have insufficient recognised stature or weight among sources of56

Response, p. 10
Response, p. 8.
58
Response, p. 9.
57

16

opposition59. Moreover, all come from North America60; the Objector has not presented a single
letter from an insurance company outside the U.S.

79.

In furtherance of this argument, the Applicant considers that the letters of support for fTLD
Registry Services – the Objector’s affiliate – delivered by the Objector should not be consideredwhile judging this application, and should be disregarded61.

80.

As a second argument, the Applicant alleges that the Objector has failed to prove that it actually
represents the opposition of its 24 insurance members, asking whether the Objector had
conducted a vote among its members, or whether it has documented authority to represent theviews of these companies62. Furthermore, the Applicant states that “the ICC Expert for .Shop
has established precedent for the fact that an association’s membership cannot represent
substantial opposition.”63

81.

In its third argument, the Applicant alleges that the Objector has a clear motivation of selfinterest in submitting this objection, an abuse of the objection process to secure the .insurance
TLD for its subsidiary fTLD Registry Services64.
c.

Lack of strong association

82.

The Objector has not evidenced the existence of a strong association between the community
and the string65:

83.

As its first argument, the Applicant argues that “insurance” is not a community, and the word
insurance does not have a strong association with such purported community. 66.

84.

As a second argument, the word “insurance” has several different meanings in the dictionary,and none of the definitions identified suggests that the string “insurance” stands for an insurance
community.67
d.

No material detriment85.

The Applicant submits that the Objector fails to provide evidence of material detriment to thecommunity:86.

As its first argument, the Applicant states that it has put in place a multitude of augmented
security measures that go above and beyond ICANN’s requirements and closely match thesecurity measures proposed by fTLD Registry Services in its application.68

59

Response, p. 12.
The Applicant notes in Add. Sub., p. 10, that the Objector supplied one more letter after the deadline for its
Additional Submissions and catalogues this letter as coming from the European region.
61
Add. Sub., p. 10.
62Add. Sub., p. 9.
63Add. Sub., p. 9.
64
Response, p. 12.
65
Response, p. 14.
66
Response, p. 14.
67
Response, p. 14.
68
Response, p. 15.
60

17

87.

As a second argument, the Applicant points out that as a gesture to prove its intent to follow
through on all its commitments, it has filed a PIC statement on 31 May 2013 making thecommitments legally enforceable. 69 The Applicant is committed to implementing every policy
outlined in its Application.

88.

The Applicant specifically rebuts all the allegations made by the Objector, as follows:
-

-

-

-

89.

In summary73:--

The Objector has not evidenced any damage that would result from the Applicant’s
operation of .insurance.
The Objector has not evidenced that the Applicant intends to act in a manner detrimental
to insurance companies.
There is no evidence of any detrimental outcome.

7.

FINDINGS OF THE EXPERT-90.

In relation to the alleged poor track record of the Directi group, the allegations made by
the Objector are flawed and biased. The Applicant annexes a letter from Directi
explaining the circumstances of the phishing report and the PDR UDRPs (the ICANN
resolution procedure for malicious use of domain names, of which another affiliate of
Direct is part). It attaches additionally a letter from Radix (another affiliate of Directi –the Applicant’s parent company) to ICANN addressing the cybersquatting allegations
made.
In relation to the Objector’s generic domain name allegations, the Applicant submits that,the reservation by the Applicant of some generic domain names within .insurance allows
the registry operator to convey a positive image to users, and that such generic names willin any event be allocated to registrants that will promote the .insurance namespace andbenefit the registrants of general names70.
Regarding the Objector’s allegation that the Applicant’s lack of a relationship willallow/encourage cybersquatting in .insurance, the Applicant submits that the applicabilityof detailed eligibility restrictions and strict name selection policies (legally enforceable),
coupled with a multitude of other security mechanisms detailed in the application, render
the likelihood of cybersquatting and loss of institutional reputation immaterial71.
The Applicant rejects the Objector’s allegation that members of the insurance industry
would likely feel the need to register a substantial number of purely defensive,
unnecessary and costly registrations to protect the variations of names in their brands.
The Applicant states that its policies and processes ensure that only the eligible registrant
can register a general domain name that it qualifies for72.

In order to be successful, the Objector must prove that it has standing to object (A) and that thefour Requirements on the merits are met: the community it invokes is clearly delineated (B),there is substantial opposition from the community to the Application (C), there is a strong
association between the community and the string (D), and the Application creates the69

Response, p. 15.
Add. Sub., p. 13.
71
Response, p. 18.
72
Response, p. 18.
73
Response, annex 6.1, section 4.
70

18

likelihood of material detriment to the rights or legitimate interests of a significant portion of thecommunity to which the string may be explicitly or implicitly targeted (E).

91.

The Objector claims it has met all the above, while the Applicant avers that the Objector has
failed to prove any.

92.

I turn now to review the Requirements.
A.

93.

The Objector’s standing to object

To have standing, the Objector must prove that it is an established institution (a) with an
ongoing relationship (c) with a clearly delineated community (b).
a.

The Objector is an established institution

94.

To establish standing the Objector must first prove that it is an established institution.

95.

The Objector has submitted evidence that it is an organisation representing the interests ofintegrated financial providers. Its origins date from the early twentieth century. Though initially
it was aimed essentially at the banking field, in 1999 it changed its mission to include insurance
and securities markets. Today its members include bank companies (which comprise around
44% of the members), insurance companies (around 28%), broad diversified companies (around17%) and securities companies (around 10%)74.

96.

On the basis of the above, I am satisfied that the Objector has shown it is an establishedinstitution for the purposes of these Proceedings.
b.

97.

Ongoing relationship with a clearly delineated community

Having shown that it is an established institution, the Objector must then prove that it has an
ongoing relationship with a clearly delineated community invoked by the Objector.
Determination of the community represented

98.

The first question to be addressed is the determination of the community the Objector is
invoking. The Objector does not specifically define the community it represents, which may beeither the global insurance community or the U.S. insurance community. In my opinion it isclear that the Objector is basing its case on the global insurance community, as proven by thefact that the Objector refers to the regulatory constraints at OECD level countries75.

99.

Additionally, the Objector has gone to great lengths to provide evidence of the opposition frominternational insurance associations, with references to the “growing ranks within the insurance
community explicitly supporting the community approach”76. I thus conclude that thecommunity being invoked is the global insurance community.

74

Objection, p. 4 and www.fsround.org for distribution of %.
Objection, p. 8 - Note that the Applicant acknowledges this in its Add. Sub., p. 9.
76Add. Sub., p. 4.
75

19

100. It has not been contested that the community invoked by the Objector coincides with an
economic sector. The Guidelines to Recommendation 20 of the ICANN Final Report define
community as follows:“Community – community should be interpreted broadly and will 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”.

101. Having determined the community invoked, I now proceed to consider whether it is a clearlydelineated one77.
The Objector’s allegations

102. The Objector claims that an international insurance community is evidenced by:(i)the fact that insurance companies carrying direct insurance activities are subject toregulation and supervision in the OECD countries;(ii) the restriction on the use of the word “insurance” in various contexts by various national
and local laws;(iii) the various standard setting organisations within the insurance community, such as theInternational Organization for Standards (ISO), that have been created to establish bestpractices and coordinate with standard setting bodies within the insurance community,
such as AIAS78 , among others.
Expert’s findings

103. I am persuaded by the Objector that there is a clearly delineated79 community, for the following
reasons:

104. (i) The insurance community is a highly regulated sector. Most jurisdictions have enacted
regulations providing for the need to meet substantial entry requirements based on solvency,
technical capability and the requirements that officers and shareholders meet proper standards.

77

For the purposes of considering standing to file an objection, the Procedure requires, inter alia, evidence of an
ongoing relationship with a clearly delineated community (see Procedure 3.2.2.4, 3-8). Additionally, theexistence of a clearly defined community is one of the requirements that must be evidenced under the section onreview of the merits (see Procedure 3.5.4, 3-22/23). I see no reason to consider that the same term “clearlydelineated community” should have two different meanings. To avoid reviewing twice the same concept, I willtake into consideration in this section not only the factor provided for in section 3.2.2.4 – existence of formalboundaries around the community – (which is restated under section 3.5.4), but also the factors suggested to theExpert under section 3.5.4. to evaluate the existence of a clearly defined community. The conclusion will thus beapplicable both to the analysis on standing and to the test under the merits.
78
Objection, p. 8/9.
79
Module 4 of the Guidebook defines in its criterion 1 (which deals with the determination of the existence of acommunity), delineation as follows: “Delineation relates to the membership of a community, where a clear andstraight-forward membership definition scores high, while an unclear, dispersed or unbound definition scores
low”.

20

105. (ii) These regulations:--

restrict the use of the word “insurance” to ensure that entities which do not meet the entry
requirements and are not properly registered are precluded from using the term insurance
in their corporate name.
supervise ongoing activities.

106. All these measures have as their ultimate goal the protection of the consumer and of thesolvency of the financial system.

107. The above evidences the existence of clear formal boundaries providing a clear delineation of
the worldwide community.

108. (iii) International organisations have been created to establish standards, best practices and tocoordinate with standard setting bodies within the insurance community80:-

The International Organization for Standards (ISO) has published the International
Classification for Standards (ICS) international standards, including insurance;
The Global Federation of Insurance Associations (GFIA), an association which represents
around 88% of the world insurance premiums, and has the objective of representing theinsurance community on a world wide scale81, a role which has been already recognisedby the IAIS82. An example of this collective action is the defence of the fTLD Registry
Services application by the Objector, and the specific opposition to the Applicant’s.insurance application.

109. The above supports the recognition of the supra national dimension of the insurance industry
and evidences the awareness of an international insurance community83.
80
81

Such as the International Association of Insurance Supervisors (IAIS).
GFIA’s mission statement states:“The Global Federation of Insurance Associations (GFIA) is a non-profit association established to represent
national and regional insurance associations that serve the general interests of life, health, general insurance
and reinsurance companies and to make representations to national governments, international regulators andothers on their behalf…..
The federation:
represents member association's interests to, among others, international regulatory groups, standard-settersand governments to increase the industry's effectiveness;
contributes to an international dialogue on issues of common interest by formalising contact, cooperation anddialogue among national and regional insurance associations;
co-operates with other international organisations, particularly those representing the insurance industry;
shares non-commercially sensitive information and research; andprovides information on positions taken by the federation.” (www.gfiainsurance.org)”.

82

The digital Financial Post published in 09/10/12 the following in relation to the appointment of the firstpresident of GFIA: “This is a great day for the insurance industry around the world,” Mr. Swedlove declared in astatement. “The Federation will give our associations the ability to respond on a timely basis to international
issues affecting our industry and to speak with one voice”. ……….”. We look forward to working with GFIA
and its members as we all continue to promote effective and globally-consistent supervision of the insurance
industry,” said Peter Braumüller, chairman of the executive committee of the Washington, D.C.-basedInternational Association of Insurance Supervisors”.
83
The International Association of Insurance Supervisors (IAIS), is an organization of insurance supervisors andregulators from more than 200 jurisdictions in nearly than 140 countries. In addition to its Members, more than
130 Observers representing international institutions, professional associations and insurance and reinsurancecompanies, as well as consultants and other professionals participate in IAIS activities. Established in 1994, theIAIS is the international standard setting body responsible for developing and assisting in the implementation ofprinciples, standards and other supporting material for the supervision of the insurance sector. The IAIS also21110. I am therefore persuaded that the Objector has proven the existence of a clearly delineatedinternational insurance community for the purposes of this Objection proceeding.

111. I turn now to the Applicant’s counter arguments. The Applicant submits that (i) the Objector has
failed to evidence cohesion and awareness of the existence of a community; (ii) there is no
public recognition of the invoked community; and (iii) and that the invoked community is not
sufficiently delineated84.

112. I find these arguments not sufficiently persuasive to change my previous finding.
113. (i) The Applicant relies on Module 4 of the Guidebook, which requires evidence of the cohesion
factor between all the insurance companies, who must be aware that they form part and are
members of the alleged community.

114. First, I am not convinced that Module 4 precepts should be applied automatically, since they aremeant for a different procedure, namely the contention procedure. A stated above (seeparagraph 51), Module 4 may be used only as general reference85. In any event, the existence ofsupra-national organisations protecting the interests of the insurance sector as analysed above, is
proof of the cohesion and awareness of the group’s existence and common interest. Moreover,the fact that significant associations86 have sent letters supporting the fTLD Registry Services as
a Community Application shows that the international insurance community is very ready (inthe words of the Applicant) “to unite and stick together for a common cause”87.

115. (ii) I am not persuaded by the argument that no public recognition has been evidenced, on thebasis that a google search for the term “insurance community” does not bring up any single
website that mentions the existence of an insurance community88. In general, the term
community is more easily used in the context of persons, and not legal entities. In this latter
context, the terms industry or sector are probably more appropriate, and certainly more readily
used, when referring to a legal entities community as understood in the Guidebook89.

116. (iii) The Applicant avers that the innumerable differences in the way companies can beconsidered as insurance companies across the world imply that the purported insurance

provides a forum for members and observers to share their experiences and understanding of insurance
supervision and insurance markets.
84
Response, p. 8.
85
Module 4 states that “It should be noted that a qualified community application eliminates all directly
contending standard applications, regardless of how well qualified the latter may be. This is a fundamental
reason for very stringent requirements for qualification of a community-based application, as embodied in thecriteria below. Accordingly, a finding by the panel that an application does not meet the scoring threshold toprevail in a community priority evaluation is not necessarily an indication the community itself is in some way
inadequate or invalid.” – Module 4, 4-9.
86
Global Federation of Insurance Associations (88% of world premiums through 35 associations), Insurance
Bureau of Canada (90% premium volume of P&C insurance in Canada, Insurance Council of Australia (90%premium income written by private sector general insurers), Insurance Europe (95% of total European Premiumincome through 34 associations).
87
Response, p. 10.
88
Response, p. 8.
89
I draw attention to the Recommendation 20 of the Principles Recommendations & Implementation Guidelines
produced by ICANN’s Generic Names Supporting Organization (GNSO), which specifically stated: “c)Community – community should be interpreted broadly and will include, for example, an economic sector, …..”.

22

community is not clearly delineated. I find this argument unconvincing: though the specificentry barriers may be different, the fact remains that regulations exist and cover similar
concepts90. Furthermore, entry requirements are designed with the same aim, which is toprovide barriers to entry to ensure a safe, recognisable insurance environment on which thecustomer, be it a local or a foreigner, can rely.
c.

Ongoing relationship117. Having accepted that the community the Objector is invoking is clearly delineated, I now
approach the issue of whether there is an ongoing relationship between the Objector and thecommunity.

118. On this point, the Objector alleges that it has acted as an advocate of the insurance sector invarious fora, and that it has created working groups, committees and other instruments whichfacilitate the participation of its members in activities related to the general interests of theinsurance sector.

119. I have reviewed the activities mentioned by the Objector – this being one of the criteria
established in the Procedure91 – and note that most of them are related to the U.S. market, andnot to the global community being invoked.

120. However, as Expert, I am authorised to value factors other than those expressly established in
the Procedure92, and I have found signs that the international insurance community has trusted
the Objector and is confident that the Objector will act in the interest of the community:-

The Global Federation of Insurance Associations issued on 19 September 2013 a letter
expressly seconding the Objector’s actions in these Proceedings.
International insurance associations93 have shown clear support to the fTLD Registry
Services community application (pro memoria: the community application made by the
Objector’s affiliate). The operating managers of fTLD Registry Services are theAmerican Bankers Association and The Financial Services Roundtable (the Objector)94.
Moreover, both the Insurance Bureau of Canada and the Insurance Council of Australia
have requested fTLD Registry Services to expand the availability of the string to theglobal insurance community, a sign of trust with fTLD Registry Services and, indirectly,with the Objector.

121. It is my opinion that the facts described above are significant and, jointly with the otherconsiderations made, reveal the existence of an ongoing relationship between the Objector andthe community invoked.

90

The Applicant identifies these as follows: “Key differences lie in the required legal form, business plans, andlist of documentations, minimum capital requirements and solvency margin requirements.” Response, p. 9.
91
Procedure, 3-23.
92
Procedure, 3-23.
93
The Global Federation of Insurance Associations, (a representative body for the global insurance industry
comprising 35 member associations, who account for approximately 88% of the world insurance premiums);
Insurance Europe, the European insurance and reinsurance federation (representing undertakings accounting foraround 95% of total European premium income); The Insurance Council of Australia (representing around 90%
of total premium income written by private sector insurers); Insurance Bureau of Canada, (the Canadian national
industry association representing 90% by premium of the P&C Insurance business).
94
Application, question 18(a).

23122. In conclusion, standing requires the Objector to prove that it is an established community withan ongoing relationship with a clearly delineated community invoked by the Objector. I findthat Objector has satisfied all these elements, and declare that the Objector has standing to filethe Objection.
***

123. Having considered that the Objector has standing to object, I turn now to the review of thestandards section (Procedure, section 3.5.4).
B.

Test 1: Clearly delineated community

124. I have already considered (see section A. b.) the existence of a clearly delineated community,and I have been convinced that the existence of clear formal boundaries around the community,
and the public recognition and awareness of the supra national insurance community proves theexistence of a clearly delineated community.
C.

Test 2: Substantial opposition by the community

125. Having considered that the community invoked by the Objector is clearly delineated, the next
test is to determine whether there is substantial opposition from the community.

126. To evaluate whether the opposition is substantial, the Procedure invites the Expert to consider
several factors, including, among others, the number of expressions of opposition relative to thecomposition of the community, the representative nature of such opposition, the level ofrecognised stature or weight among sources of opposition and the distribution or diversity
among sources of expressions of opposition.

127. The Objector claims that it has proven substantial opposition from the community, evidenced byvarious letters of support of this Objection, and by the fact that there is substantial endorsement
to the competing community application presented by fTLD Registry Services. The Applicant
on the other hand, submits that such evidence is insufficient.

128. I am persuaded by the arguments of the Objector and unconvinced by those of the Applicant, forthe following reasons:Companies represented by the Objector

129. The Objector represents 21 insurance member companies with a substantial size and businessactivity, of which 14 are within the top 50 U.S. insurance companies and five of them are listed
within the 50 largest insurance companies in the world by assets.95 These are companies with arecognised stature among the insurance community.

130. While the Applicant does not deny the significance of the Objector’s membership, it alleges that
the Objector has failed to prove that it actually represents the opposition of its 24 insurance
members96.
95

Source: www.relbanks.com
Add. Sub., p. 9. Additionally, the Applicant states that “The ICC Expert for .Shop has established precedent
for the fact that an association’s membership cannot represent substantial opposition”. I have reviewed the .shop
determination, and I am not persuaded by the Applicant’s interpretation. The Expert did not reject the96

24131. I cannot agree with the Applicant. The Objector identifies itself as:“… the leading advocacy organization for America’s financial services industry. With a
100-year tradition of service and accomplishment, FSR is a dynamic, forward-looking
association advocating for the top financial services companies, keeping them informed on
the vital policy and regulatory matters that impact their business……….
With expanding Washington involvement in our industry, forming relationships andengaging with public officials and policymakers is critical to helping our members seearound the curve, understand policies and regulations, and provide input to help shapethem.
FSR is driven at the CEO level giving us a unique and influential voice in Washington. At
every level of the government, FSR is working to ensure that our members’ interests arewell represented”97.

132. In other words, the Objector is an association created by its members with the mission to
advocate on behalf of the members in the furtherance of their aims and interests. I find it
therefore absolutely reasonable to consider that the Objector’s actions are within the mandate of
all the members, and should be taken as such, without the need to have every statement voted
upon by its members.

133. Finally, it is in any event worth highlighting that several of the members, including verysignificant entities such as Prudential, Nationwide, Allstate and StateFarm have gone to thelengths of confirming the Objector’s position through the delivery of support letters98 – whichbrings us to the second argument.
Letters of support and opposition comments

134. (i) The Objector has delivered eight letters of support expressing opposition to the Application,
seven from among its members and related associations99, and one from the Global Federationof Insurance Associations (GFIA – an association of the global insurance industry comprising
35 member associations, which represent insurers and reinsurers in 56 countries, collecting 88%
of world-wide premiums)100. The Applicant complains that only a few letters of opposition weredelivered by four insurance companies and three associations, all from the U.S.

135. I am not persuaded by the Applicant. Of the letters delivered in support of the Objector, sevencame from members of the Objector’s organisation, and in that sense I allot them confirmatory
value, but it is the eighth letter that I find especially relevant, namely the GFIA letter dated 19
September 2013. GFIA is an organisation formed by a very substantial number of worldwide
insurance associations. They represent according to their website, around 88% of the world
insurance companies by premium. GFIA has been established, as seen from its mission
statement, to represent insurance associations and make representations on their behalf torepresentative nature of the association, it actually considered that it was not representative enough comparedwith the community. Furthermore, Module 3 provides as a factor to consider the opposition the representative
nature of entities expressing such opposition (Procedure, 3-24). Module 4 also acknowledges the representative
nature of community member organizations (Procedure, 4-17).
97
www.fsroundtable.org.
98
Objection, Annex C.
99
Insurance companies: Allstate, Prudential, StateFarm, Nationwide. Associations: Property & Casualty
Insurers, Agents for Change, Reinsurance Association of America.
100
www.gfiainsurance.org.

25

governments and international regulators. Consequently, its statements must be considered as
representing the interests and intention of its associated members.

136. (ii) As further support, the Objector relies on several opposition comments made in ICANN’s
public forum, notably one from the American Insurance Association, an association grouping
300 U.S. Property & Casualty insurers, with more than 100 billion dollars in premiums.

137. (iii) The Objector has also furnished a list of supporters/endorsers of the Community
Application filed by the Objector’s affiliate fTLD Registry Services101. This list comprises
international insurance associations of substantial size and geographical diversity102. I note theApplicant’s request that these letters should not be considered for the purposes of thiscommunity objection proceeding103, alleging that the Guidebook does not call for support of acontending application to be considered when judging opposition, but rather should be taken
into consideration for the purposes of the Community Evaluation Procedure (CPE) string
contention procedure104.

138. I am unconvinced by such request because, as Expert, I am authorised to value factors otherthan those expressly established in the Procedure105: an applicant presenting a community
application may, if there is a contending applicant for the same string, request a Community
Evaluation Procedure [“CPE”] at the start of the contention resolution stage106. A successful
result in the CPE implies a defeat of all standard applications for the same string (even if theother applications have met all requirements). It follows that any endorsement of a community
application is an implicit endorsement of such application against any competing standard
applications. Thus, the endorsements of fTLDs Registry Services community application for thesame string must be construed as tacit oppositions to the Applicant’s application107, since it is astandard application.

101

Add. Sub., p. 4.
Among others, the Global Federation of Insurance Associations, a representative body for the global
insurance industry comprising 35 member associations (whose members account for approximately 88% of theworld insurance premiums), the Insurance Bureau of Canada, (the Canadian national industry association
representing 90% by premium of the P&C insurance business in Canada), Insurance Europe, (the European
insurance and reinsurance federation, whose members account for approximately 95% of total premium income
in Europe), and the Insurance Council of Australia (representing more than 90% of premium income written by
private sector general insurers in Australia).
103
Add. Sub., p. 10 .
104
Add. Sub., Annex C.
105
Procedure, 3-23.
106
Guidebook, 4-8/9. The main difference between a standard application and a community-based application
lies in the fact that a community-based application must meet stronger requirements than a standard one. The
decision whether to present an application as a standard application or a community-based application is up to
the presenting applicant.
107
In this sense, the GFIA endorsement states: “The GFIA welcomes the fTLD Registry Services communitybacked bid. It believes that community applications such as that by fTLD is the most appropriate way to manage
the .insurance gTLD.”. Similarly, the IE letters states: “As a community applicant from the industry it represents,
fTLD Registry Services understands the industry’s need for domain governance and internet security. We haveconfidence that fTLD will act in the interests of the industry”.
102

26Potential conflict of interest and alleged abuse of process

139. As a last set of arguments, the Applicant alleges that the Objector has a clear motivation of selfinterest in submitting this objection, which is an abuse of the objection process to secure the.insurance TLD for its subsidiary fTLD Registry Services108.

140. I cannot agree with these arguments:--

Regarding the potential conflict of interest, the Procedure acknowledges that an objector
in a community objection procedure may itself be requesting the same string109. Whether
there is an additional economic benefit for an objector or not does not have any impact
per se on the right to file an objection.
Regarding the alleged abuse of process, this argument must be dismissed a limine: for acommunity objection to prosper, the objector must meet the requirements established by
the Procedure, which include, among other factors, substantial opposition of thecommunity targeted, and likelihood of damage to such community. It is unimaginable
that an objector successfully proving these requirements would pursue a hidden purpose
to defraud or abuse the process.

141. In conclusion, I am persuaded that the Objector has met the requirement of substantial
opposition from the international insurance community.
D.

Test 3: Strong association between community and string142. Having established substantial opposition to the Application, the next test to consider is whether
there is a strong association between the community and the string.

143. The Objector claims that a strong association does indeed exist, whilst the Applicant denies thatsuch association has been evidenced.

144. To help determine the issue, the Expert may balance factors including: the statements containedin the Application (a) and the level of association by the public between community and thestring (b).
a.

Statements contained in the Application

145. I have reviewed the text of the Application, and in my opinion there is a clear association
between the string and the insurance community. The first sentence in Q18 of the Application,
describing the mission/purpose of the gLTD, states:“The mission of .insurance is to represent the Insurance industry globally in its own
differentiated namespace”110.

108

Response, p. 12.
“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.” Procedure, 3-24.
110
Application Q 18(a), section 1.
109

27

146. This is restated further on in the name question:“This need for the Insurance industry to distinguish both the brand identity and theiroffering for customers in their own differentiated namespace fuels the motivation behind.Insurance”111.

147. In other words, this namespace identifies the brand identity and its products; i.e. the string isclearly associated with the insurance community industry and its products.

148. One final paragraph provides a further example of the association between string and targetedcommunity that transpires from the Application:“.Insurance will also allow Registrants in the insurance community to differentiatethemselves from the 200+ million domain names out there. As of now a typical insurance
related institutions domain name appears identical to any other domain name in a .gTLD(com) or cc.TLD extension (eg .in). .Insurance provides the ability for Registrants to createa differentiated identity wherein just by looking at the URL end users will be assured of thefact that they are dealing with an insurance related institution”112.

149. The above evidences the clear association between the string .insurance and the insurance
community to which it is targeted.
b.

Level of association by the public150. Regarding association by the public of the community and the string, there are several facts thatclearly point to such association.

151. To begin with, the Beijing GAC Advice identifies this problematic issue when referring to thetrust that the consumers have in the insurance community. In Beijing, the GAC warned:“Strings that are linked to regulated or professional sectors should operate in a way that is
consistent with applicable laws. These strings are likely to invoke a level of implied trustfrom consumers, and carry higher levels of risk associated with consumer harm”.

152. In other words, because the string (in this case, .insurance) is linked to a regulated sector (theinsurance sector), the consumers will assume that the users of such domains are part of theregulated community.

153. I also consider helpful to take the guidelines provided in Module 4 Guidebook (CPE procedure)
for valuing the nexus between the string and the community. The guidelines indicate that thematching of the string with the name of the community is a high nexus indicator: the Guidebook
grants a score of three points (out of four) if the names match (i.e. string and community havethe same name)113. In our case, the term insurance and the community invoked provide a clear
match.

111

Application Q 18(a), section 1.
Application Q 18(b), section 2.2.
113
Guidebook, 4-12.
112

28

154. I turn now to consider the Applicant’s counter arguments, which are essentially the following
two.

155. The first is based on the premise that “insurance” is not a community, and the word insurance
does not have a strong association with such purported community. Since I have accepted the
Objector’s statement that there is delineated community, this argument fails.

156. The second argument states that the word “insurance” has several meanings in the dictionary,and none of the definitions identified suggests the string “insurance” stands for an insurance
community. I find this argument unpersuasive: it is not a question whether the term insurance
stands for a community as a definition in the dictionary. The issue is whether the string has astrong association with a community114.

157. In conclusion, I am persuaded that the public strongly associates the string .insurance with theinsurance community invoked by the Objector.
E.

Test 4: Likelihood of material detriment158. As the Beijing GAC Advice mentioned, strings that are linked to regulated sectors are likely to
invoke a level of implied trust from consumers, and carry higher levels of risk associated with
consumer harm.

159. After demonstrating the existence of a clearly delineated community showing substantial
opposition to a string with which the community is associated, the Objector must prove that theapplication creates the 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
targeted115.

160. In addition to the factors provided by the Procedure to consider test 4116, I note that:-

The Objector is not required to prove that the Application will result in actual material
detriment; it must only prove that it creates the likelihood of material detriment.
The concept of detriment is wider than that of pure damage; it includes loss, damage,
disadvantage or injury117.
The detriment must be caused to the rights or legitimate interests of a significant portionof the community; while the term “rights” is limited to legal rights (arising by contract orby law), the term “legitimate interests” is wider, encompassing business and economic
interests.

161. The Objector`s allegations can be summarised (for fuller description see section 5 - Summary of
the Objection), into two main arguments: poor track record in the maintenance of registries (a),and insufficient protection provided by the safeguards established in the Application (b).

114

An example could be, for example the association between a potential string such as .kosher with the Jewish
community.
115
Procedure, section 3.5.4, 3-34.
116
Procedure, 3-25.
117
Random House Kernerman Webster’s College Dictionary.

29

a.

Track record of the Directi group in the maintenance of registries

The Objector’s allegations

162. The Objector has made serious allegations concerning the track record of the Directi group118: it
submits that:---

According to the APWG report119, Directi accounted for the largest percentage ofmalicious domain name registrations in any named registrar, ranking in the top-ten
phishing registrars.
Furthermore, there are numerous documented instances where members of the insurance
community have had to file UDRPs with ICANN to combat abusive domain nameregistrations sponsored by PDR120.
On top of it, according to the Objector, there is a track record of the Directi group using theproxy services to mask the identity of cybersquatters121, through its service
PrivacyProtect.org.

The Applicant’s response

163. In response to these arguments, the Applicant contends that allegations concerning other entities
other than the Applicant are not relevant. In any event, the Applicant submits that:--

APWG report’s statistics are based on registrations in four TLDs, (.com, .net, .org, and.in) for which none of the registry operators have any significant restrictions on domainname registrations; therefore, if phishing registrars exist (lured by Directi’s low
registration prices)122, it is not due to an alleged lack of quality control on the front end of
Directi’s registration process, but to the failure to set restrictions on registrations.
Moreover, of the 527 abusive domain names, Directi had only been informed of threeprior to the issuance of the APWG report, which were already suspended. Furthermore,
upon becoming aware through the APWG report of the abusive domain registrations,
Directi suspended all litigious domains.
In relation to the allegations on PDR, of the 31 UDRP proceedings submitted by the
Objector, PDR was not notified of any abusive behaviour prior to the UDRP filings.
The allegations of use of proxy services to mask the identity of cyber squatters was madeby a competing applicant in another string, and were addressed in a letter to ICANN; they
have thus no bearing on this case.

Expert’s findings

164. I find the Objector’s allegations serious.
118

The Applicant is part of the Directi Inc. (Directi) group. Directi is a company located in Mumbai, India, under
the control of Mr. Bhavin Turakia, as founder and present CEO (annex 6.3 Response). The group includes Radix
FCZ (Radix), and Public Domain Registry (PDR).
119
Objection, p. 11. Anti-phishing Working Group (APWG) report “Global Phishing Survey: Trends andDomain Name Use in 1H2012. The APWG produces additionally a secondary report, which normalizes thenumber of malicious domain names per 10,000 domain names under management.
120
Objection, p. 13.
121
Objection, p. 13.
122
Directi registrars provide amongst the lowest domain registration pricing as part of its business strategy. A
review of the malicious domain names evidences the fact that low price points lead to abusive registrations. See
Directi’s letter – annex 6.3 to the Response.

30

165. The Applicant is a wholly-owned subsidiary within the Directi Group, and according to theApplication, the abuse and compliance processes will be run by the Directi Group123. Thus, thepolicies and practices of the Directi group in this area are relevant to this analysis of thepotential harm.
The existence of a general risk of harm

166. It is my view that Directi group does have a poor track record regarding the maintenance ofdomain registries. Though there may be some justification in some of the cases, the overall
picture is actually far from the zero risk the Applicant presents in its Application:--

A proportionally higher level of malicious name registrations in the Directi Groupregistrars would seem to indicate a certain lack of quality control on the front end of theregistration process. Directi explains that low pricing policies of its registrars could be afactor in the abusive registrations. While this may be true, it certainly does nothing to
reduce the concern that these practices create, nor is there any evidence that there is anintention to have them modified and to eliminate or at least reduce the risk of further
malicious activities. Thus, the risk identified by Directi itself remains. The Applicant’s
argument that Directi sent a letter to ICANN in response to the cybersquatting events in
its PrivacyProtect.org does not assuage my concerns124.
Other group entities such as PDR are failing to proactively fight cybersquatting and otherabusive behaviour, increases the concerns. Furthermore, the Applicant’s allegations thatPDR was never notified of any abuse prior to the UDRP filings, and thus could not takeany preventive action, are not convincing.

The existence of a qualified risk of harm

167. Financial institutions are clear targets for malicious phishing and cybersquatting activities. The
Beijing GAC Advice warned that these strings are likely to invoke a level of implied trust fromconsumers, and carry higher levels of risk associated with consumer harm.

168. Thus, I acknowledge the heightened probability of malicious use of domain registrations due tothe nature of the string, and the high risk of consumer harm underscored by the GAC. It seems
clear to me that without additional material safeguards to operate the string .insurance, I would
be inclined to consider that the Objector has proven there is likelihood of material damage to theinsurance community should the Applicant be granted the string.

169. The real question is whether the Applicant has implemented appropriate safeguards to ensurethat no malicious use of the string could occur. In this regard, the Applicant has acknowledgedthat the .insurance string requires special security considerations”125, that it is fully prepared tocomply with the safeguards detailed in the Beijing GAC Advice126, and indeed, that it has put inplace a multitude of augmented security measures that not only go above and beyond ICANN’s

123

Application Q 18(b), section 4.1.
The letter to ICANN did not rebut the allegations of inadequate action against cybersquatting; its contents
were aimed at establishing that regardless of the number of UDRPs that the service had been engaged in and lost,the applicant to the string in that case was qualified to apply.
125
Application Q 18(b), section 3.1
126Add. Sub., p. 14, which goes on to state: “as repeated several times over in our response”.
124

31

requirements, but also closely match the security measures proposed by fTLD Registry Services
in its application127.

170. I will, thus, devote the next chapter to analysing the security measures proposed by the
Applicant in order to determine whether they seem sufficient to prevent the risk of harm from
actually materialising.
b.

Protection provided by the safeguards established in the Application

171. The Applicant represented in the Application that it would implement a number of safeguards toprevent the risks of harm from happening and included the following commitments in a PIC128 that is, it made them legally enforceable:“1. General Names (as described in section 18b sub-section 4.1 of the application)
will be available for registration to institutions related to the insurance industry
only. For example: insurance carriers, agents, brokers, service providers.
2. Each registered general domain name must be similar to the business name,common name, common law name, trademark name, corporate name of registrant
or its products or services or offerings.
3. Both of the above criteria along with the identity of the registrant must be
validated before a general domain name is activated.
4. The above applies to general domain names whether registered during sunrise,
landrush or general availability.
5. Proxy registrations will not be permitted in .Insurance”.

172. The PIC only makes reference to general domain names. Since the Application, however, makesa difference between generic domain names and general domain names (a difference that will
prove to be relevant), it is worth explaining such concepts. Generic names would be, forexample, auto.insurance, travel.insurance, health.insurance and the like. General names would
be essentially the general names for which the registrants would apply, for example,
AIG.insurance.
The parties’ positions

173. The Applicant affirms having put in place a multitude of augmented security measures that go
above and beyond ICANN’s requirements129 that closely match the security measures proposedby fTLD Registry Services in its application.

174. The Objector points out that, where the registry operator has no meaningful and on-going
relationship with the community targeted by the gLTD, its ability to safeguard any sensitive
string is a paramount concern, because changes in ownership of the owner of the right to the127

Response, p. 15
Pro memoria: statements made in the Application are enforceable by ICANN in the future if included(specifically or by reference) in the Registry Agreement to be signed eventually between the Applicant – if
successful in the Application – and ICANN. As a result of the Toronto GAC Advice, ICANN provided the
Public Interest Commitment (PIC) format, whereby applicants could issue PICs indicating whether (all or partof) the statements in the applications would form part of the Registry Agreement. This means that PIC
statements will be enforceable by ICANN in the future as part of the obligations assumed by the relevant
applicant. Other statements and representations made in an application relating to the future will not be part of
the Registry Agreement and will not be enforceable by ICANN.
129
Response, p. 15.
128

32

string can result in changes in the safeguards/representations made in the original application130.
The Applicant takes issue with the Objector’s allegation and highlights the importance ofapplying a detailed Eligibility Restrictions and a strict Name Selection policy (legally
enforceable), coupled with a multitude of other security mechanisms detailed in the application,
which render the likelihood of cybersquatting and loss of institutional reputation immaterial131.

175. The Objector has questioned the effectiveness of the representations made by the Applicant withrespect to the eligibility policies (i.e. who may apply for a domain name), because they do notseem to be applicable to generic names. This means that generic names could be registered tothird parties that are not insurance carriers, brokers and service providers (e.g. health.insurance).
The Applicant acknowledges that the safeguards are not applicable to generic domain names
within .insurance, precisely to allow the registry operator to convey a positive image to users
because the domain name will be allocated to registrants that will promote the .insurance
namespace and benefit the registrants of general names132.
Expert’s findings

176. I have reviewed the Application and the PIC, and my conclusion is that the Applicant is notproviding the safeguards necessary to avoid the likelihood of material damage to thecommunity. In my analysis I will determine what the appropriate safeguards are and thencompare them with those which the Applicant intends to put into effect.
Safeguards established in the Beijing GAC Advice

177. Pro memoria: the Beijing GAC Advice stated that strings that are linked to regulated or
professional sectors should operate in a way that is consistent with applicable laws, because
these strings are likely to invoke a level of implied trust from consumers, and carry higher levelsof risk associated with consumer harm. Among such strings, the GAC identified .insurance.

178. In addition, the GAC advised that some strings may require further safeguards to address
specific risks and to bring registry policies in line with arrangements offline. In particular, alimited subset of the above strings are associated with market sectors which have clear and/or
regulated entry requirements in multiple jurisdictions, such .financial, and proposed, in addition
to other measures the following:---First Safeguard: at the time of registration, the registry operator must verify and validate
the registrant’s authorisations, charters, licences and/or other related credentials forparticipation in that sector.
Second Safeguard: in case of doubt with regard to the authenticity of licenses orcredentials, registry operators should consult with relevant national supervisory
authorities or their equivalents.
Third Safeguard: the registry operator must conduct periodic post-registration checks toensure registrant’s validity and compliance with the above requirements.

130

Objection, p. 12, citing as an example the string .sport, which originated as a professionals string and has
produced sextoys.pro, online casino.pro, etc.
131
Response, p. 18.
132
Add. Sub., p. 13.

33

179. Both parties agree that .insurance is a financial string and in need of special protection. The
Applicant has precisely stated that it is prepared to comply with the specific safeguards that the
GAC proposed in the Beijing Advice133.
The Applicant’s implementation of the Safeguards

180. I have reviewed the Application and the PIC, and consider that the Applicant has not provided
safeguards as provided in the Beijing GAC Advice, specifically, by failing to establish (i) any
safeguard restrictions on generic domain names and (ii) subsequent control.

181. (i) Unrestricted generic domain names: the Applicant provides for different registration policies
depending on whether the domain name is generic or general134. Section 4 of Q18(b) of the135
Application deals with registration policies , providing certain restrictions based on definedeligibility criteria and a name selection policy in its sub-section 4.1 addressing general names.
Sub-section 4.2, which deals, inter alia, with generic names, does not include eligibility andname selection policies and, thus, does not contain any restrictions.

182. This distinction is reiterated in section 1.1 of Q29 of the Application (which deals with rights
protection mechanisms)136:“.Insurance will have well defined eligibility requirements and name selection policy fordomain registrations within .Insurance along with a dispute resolution process (Eligibility
Restrictions Dispute Resolution Process – ERDRP) to resolve potential abuse. Our
Eligibility and Name Selection policy and process has the following impact on RPMs –Ensures that general domain names within .Insurance are registered by insurance carriers,
agents, brokers, service providers etc. only….”.

183. Thus it derives that generic domain names will not be subject to the eligibility requirements andname selection policy for domain registrations within .insurance. Consequently, under the textof the Application, generic names (e.g. flight.insurance) could be registered to third parties thatare not bona fide members of the insurance community.

184. The Applicant argues that the filing of the PIC ensures that it has undertaken enforceablecommitments. This argument is irrelevant: the PIC affects the enforceability of therepresentations made in the Application, it does, however, not alter the content of such
representation. Whenever the representations are insufficient, as I have just established, theirenforceable character does not cure the defect. I have reviewed the PIC and can confirm that, in
coherence with the Application, the reference to general names137, clearly excludes the genericdomain names from the scope of the PIC138.
133

Add. Sub., p. 1, adding “as repeated several times in our response [to the GAC Beijing Advice]”.
Section 4 of Q 18(b) of the Application.
135
I.e. requirements to be met at registration to ensure that the registrant complies with the eligibility policies
that may be established.
136
And again in section 1.1.1 of Q 29 as reviewed below.
137
which are dealt with in section 18. Subsection 4.2 of the Application.
138
Section 3 of the PIC provides:“Dotfresh Inc. respectfully submits the following Public Interest Commitment for the .Insurance registry:
1. General Names (as described in section 18b sub-section 4.1 of the application) will be available forregistration to institutions related to the insurance industry only. For example: insurance carriers, agents, brokers,
service providers.
2. Each registered general domain name must be similar to the business name, common name, common law
name, trademark name, corporate name of registrant or its products or services or offerings.
13434

185. The Applicant furthermore alleges that reserving some generic domain names allows theregistry operator to convey a positive image to the users, and to allocate generic domain names
to registrants that will promote the .insurance and benefit the registrants of general names within.insurance139. I am not persuaded by the Applicant’s argument because there is no definition of
who may or may not be considered suitable to promote the .insurance. Even if there was such a
definition, Applicant has not included any reference to generic names or their intended use in
the PIC140.

186. (ii) No subsequent control: since the initial registration in these generic domain names is not
subject to restriction and validation, coherently neither the Application nor the PIC provide forany subsequent review and control, as proposed by the Beijing GAC Advice.
The consequences of the failure to meet the safeguards

187. Consumers are entitled to assume that entities presenting themselves under the .insurance
domain in whatever form are regulated entities, subject to the same online registration
requirements as their off-line counterparts. Thus, a consumer dealing with an entity perceived asa member of the insurance community may assume that such member acts within the context of
its regulated activity, and that products or services contracted are made subject to the applicableregulations141.

188. Since the Application does not provide any eligibility/validation restrictions on the registrationof generic names or any subsequent control, it may result in entities which are not members of
the insurance community registering generic names in the .insurance domain. If at present there
already are a substantial number of malicious domain registrations on the basis of second levelregistrations, it is likely that the reliance placed by the consumers on the gTLD domain.insurance will increase the level of malicious use.

189. If generic domain names are not subject to any registration or subsequent control, andconsumers have placed their trust on the wrongful assumption that registration barriers andsubsequent control exist, the likelihood of creating confusion in the mind of the end user will
result in harm not only to the consumer, but ultimately, to the reputation of the internet activityof the insurance community.

3. Both of the above criteria along with the identity of the registrant must be validated before a general domainname is activated.
4. The above applies to general domain names whether registered during sunrise, landrush or generalavailability.
5. Proxy registrations will not be permitted in .Insurance.”
139
Add. Sub., p. 13
140
The GAC Toronto Advice highlighted the fact that a mechanism to ensure enforceability of the statements
made in the applications was needed. This was achieved by way of the PICs.
141
For example, it is reasonable to consider that most persons entering a web page through<www.heath.insurance>or<www.retirement.insurance>,or
receiving
an
email
from
<j.smith@health.insurance>, or <j.doe@retirement.insurance> or entering any similar web page or receiving anemail from any similar email address will tend to consider that they are dealing with duly accredited insurance
entities.

35

Other issues

190. In addition to the above, there are a number of other issues arising from the Objection and theApplication that would further militate for the conclusion I have reached above. Since I havealready ruled that there is a material likelihood of detriment to the community, I consider itmoot to proceed further 142.

***
191. Allowing unregulated companies to appear as regulated entities may result in a failure to bringregistry policies in line with arrangements in place offline, leading to a different (and lower)
level of protection to online activities as compared to the level of protection offered by theapplicable regulations to entities operating in offline activities. The disparity between both areas(online versus offline) increases substantially the potential for confusion and mistakes by the
consumer and abuse of the domain by malicious entities.

192. In conclusion, I am persuaded that the Applicant has not committed to institute effective
security protection for user interests, and is not acting in the interests of the insurance
community. The Application, if allowed, would facilitate an increase in abusive behaviour (suchas cybersquatting, typosquatting, phishing…) and would result in material detriment to thecommunity through loss of consumer trust and additional difficulty in the development of theonline business.

8.

CONCLUSION

193. I find that the Objector has proven that, in relation to the Objection presented against the
Applicant’s application for the gTLD .insurance:-

The Objector has standing to object, andThe four following tests have been met:·
the community affected by the string is a clearly delineated community,·
there is substantial opposition from the community,·
there is a strong association between the string and the community, and142

The Objector states, inter alia, (Objection, p. 12) that the Directi group’s track record points “to a lack ofquality control on the front end of Directi’s registration process that would permit the registration of malicious
domain names…there is a likely causality between the lack of sufficient safeguards in Directi’s registration
process and the corresponding large percentage of malicious domain names. This potential lack of sufficient
safeguards seriously calls into question the ability of Dotfresh to validate registrants in .insurance especially inlight of its apparent lack of any on-going relationship with the insurance community.” In light of these concerns,
the adequacy of the protection policies regarding registration of general domain names would have to bereviewed. In this regard, the only restriction included in the PIC is that general names must be made available toinstitutions related to the insurance industry. Though the PIC provides a list of examples of what entities may
qualify, the list is open and thus allows other types of entities, including unregulated entities, to be registered.
This may result in entities which are not members of the insurance community registering general names in the.insurance domain, and giving the appearance of being regulated entities. Moreover, the Application lacks
definition in the validation process. There is no clear idea as to what documentation will be required, and noinformation as to how the validation will actually be done. There are no restrictions on registration or validationin the PIC other than the broad “related to the insurance industry” reference and therefore there do not appear tobe meaningful enforceable validation policies. Finally, the Objector’s stress on the lack of ongoing relationshipwith the insurance community calls into question the Applicant’s acknowledged (Response p. 16) lack ofexperience and contacts with the insurance industry and its capacity to properly validate registrants.

36

·

9.

the application creates a likelihood of material detriment to the rights or legitimate
interests of a significant portion of the community to which the string is explicitly
or implicitly targeted.

COSTS

194. Pursuant to article 14(e) of the Attachment, upon termination of the proceedings, the Dispute
Resolution Service Provider shall refund to the prevailing party, as determined by the panel, its
advance payment of costs. The Objector has prevailed and thus should have its advance costs
refunded.

37