THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/486/ICANN/103

SPORTACCORD(SWITZERLAND)
vs/STEEL EDGE LLC(USA)This document is an original of the Expert Determination rendered in conformity with the
New gTLD Dispute Resolution Procedure as provided in Module 3 of the gTLD Applicant
Guidebook from ICANN and the ICC Rules for Expertise.

TABLE OF CONTENTSAPARTIES....................................................................................................................................... 3

B.

APPLICABLE RULES AND PROCEDURAL HISTORY ............................................................... 4C.

FINDINGS IN RELATION TO STANDING ................................................................................... 5

D.

FINDINGS IN RELATION TO THE SUBSTANTIVE REQUIREMENTS..................................... 11E.

DETERMINATION ...................................................................................................................... 24

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EXPERT DETERMINATION OF A COMMUNITY OBJECTION TO AN APPLICATION FOR A NEW
GENERIC TOP-LEVEL DOMAIN NAME (<.SPORTS>)

The undersigned Expert, appointed by the International Centre for Expertise of the ICC to sit alone as
the Expert Panel in the above-referenced matter, hereby issues the following Expert Determination
resolving the above-referenced objection:A

PARTIES1.

This dispute arises under the programme established by the Internet Corporation for Assigned
Names and Numbers ('ICANN') for the acquisition and operation of new generic top-leveldomain names (‘gTLD’). Background information about that programme can be found in the
ICANN Generic Names Supporting Organisation, Final Report, Introduction of New Generic
Top-Level Domains, 8 August 2007 (the ‘GNSO Final Report’).

2.

th

Steel Edge LLC of 10500 NE 8

Street, Suite 350, Bellevue WA 20166, United States ofAmerica (the ‘Applicant’), represented by John M. Genga and Don C. Moody of The IP &Technology Legal Group, P.C., 15260 Ventura Blvd. Suite 1810, Sherman Oaks, CA 91403, isa subsidiary of Donuts Inc., which has applied, directly or through its affiliated enterprises(including the Applicant), for more than 300 new gTLDs. The Applicant submitted a New gTLD
Application to ICANN for the string <.SPORTS> on 13 June 2012 (Application No. 1-161427785: the 'Application').
3.

SportAccord, of 54 Avenue de Rhodanie, Lausanne, CH 1007, Switzerland (the ‘Objector’), isa Swiss association representing Olympic and non-Olympic international sports federations andorganisers of international sports events. On 13 March 2013 the Objector filed a 'Community
Objection' to the Application, i.e., it objected to the Application on the basis that ‘there issubstantial opposition to the gTLD application from a significant portion of the community towhich the gTLD string may be explicitly or implicitly targeted’. It is that Community Objection(the 'Objection') that is being resolved in these proceedings.

4.

The Objector has also applied in the same g-TLD application round for the gTLD <.SPORT>,
and had a ‘String Confusion Objection’ against the Application sustained by a different expert
on 20 August 2013, on the basis that the string <.SPORTS> is confusingly similar to the string<.SPORT>. As a result, the Expert’s understanding is that if this Objection is not upheld, then(absent agreement between them) the Applicant’s application for <.SPORTS> and the
Objector’s application for <.SPORT> will be resolved by the separate ‘string contention
procedure’ established as part of the new gTLD programme.

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B.

APPLICABLE RULES AND PROCEDURAL HISTORY

5.

The rules applicable to this matter are (1) the ICANN’s gTLD Applicant Guidebook (v. 2012-0604) (the ‘Guidebook’); (2) in particular, the New gTLD Dispute Resolution Procedure attached
to Module 3 of the Guidebook (the ‘Procedure’); and (3) the Rules for Expertise of the ICC (the‘Rules’), as supplemented by (4) the ICC Practice Note on the Administration of Cases under
the New gTLD Dispute Resolution Procedure.

6.

Under Article 3(d) of the Procedure, Community Objections are administered by theInternational Centre for Expertise of the ICC (the ‘Centre’).

On 5 April 2013, the Centre

completed its administrative review of the Objection. The Centre determined that the Objection
complied with all relevant requirements, and therefore notified the Applicant of the Objection.
The Applicant filed a response to the Objection on 22 May 2013 (the ‘Response’).
7.

Pursuant to Article 13 of the Procedure and Article 3(3) of Appendix I to the Rules, on 25 June2013 the Centre notified the parties that the Chairman of the ICC Standing Committee had
appointed on 20 June 2013 the undersigned, Jonathan Taylor (of Bird & Bird LLP, 15 Fetter
Lane, London, UK) to sit alone as the Expert determining this matter, and provided them with
the Expert’s statement of independence and impartiality.

Neither party objected to theundersigned's appointment as Expert. Further to the parties’ advance payment of costs in full,
the Centre confirmed that appointment on 16 July 2013 and on 26 July 2013 transferred the fileto the Expert. All subsequent communications between the Parties, the Expert and the Centre
were submitted electronically pursuant to Article 6(a) of the Procedure. The language of all
submissions and proceedings was English pursuant to Article 5(a) of the Procedure.
8.

Article 21(a) of the Procedure provides that the Centre and the Expert shall make reasonable
efforts to ensure that the Expert renders his decision within 45 days of ‘the constitution of the
Panel’. The Centre considers that the Panel is constituted when the Expert is appointed, theParties have paid their respective advances on costs in full and the file is transmitted to theExpert. In this case, the Panel was constituted on 26 July 2013. The Centre and the Expert
were accordingly to make reasonable efforts to ensure that his determination was rendered nolater than 9 September 2013 (as calculated in accordance with Articles 6(e) and 6(f) of theProcedure). Pursuant to Article 21(b) of the Procedure, the Expert submitted his determinationin draft form to the Centre for scrutiny as to form before it was signed.

9.

Article 20 of the Procedure states that for each category of objection to applications for new
gTLDs, ‘(a) … the Panel shall apply the standards that have been defined by ICANN. (b) In
addition, the Panel may refer to and base its findings upon the statements and documents
submitted and any rules or principles that it determines to be applicable’.

The standards

defined by ICANN as applicable to Community Objections to new g-TLD applications are set
out in Module 3 of the Guidebook, and the most relevant parts are quoted below.

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10.

The Expert has considered carefully all of the submissions made and the materials put forward
by the parties, in the Application, the Objection, and the Response, and the annexes to each ofthem, to determine whether the Objection meets the standards defined by ICANN. His findings
are set out below, first in relation to standing and then in relation to the substantive
requirements.

C.

FINDINGS IN RELATION TO STANDING (SECTION 3.2.2 OF THE GUIDEBOOK)

11.

A party raising a Community Objection to an application for a new gTLD must have sufficient
standing to make such an objection.

(Guidebook, section 3.2.2).

To demonstrate thatstanding, it must show that it is an ‘established institution associated with a clearly delineatedcommunity’ that is ‘strongly associated with the applied-for gTLD string’. (Guidebook, section
3.2.2 and section 3.2.2.4).
12.

The Expert must therefore determine whether the Objector is (i) an established institution (ii)associated with (iii) a clearly delineated community (iv) that is strongly associated with thestring <.SPORTS>. The Guidebook identifies factors that may be considered in determining
these issues, and they are quoted below; but the Guidebook also explains (at section 3.2.2.4)that the Expert ‘will perform a balancing of the factors listed above, as well as other relevant
information, in making its determination. It is not expected that an objector must demonstratesatisfaction of each and every factor considered in order to satisfy the standing requirements’.

13.

First, then, is the Objector 'an established institution'?
13.1 According to the Guidebook (at p.3-8), ‘[f]actors that may be considered in making thisdetermination include, but are not limited to, level of global recognition of the institution;
length of time the institution has been in existence; and public historical evidence of its
existence, such as the presence of a formal charter or national or international
registration, or validation by a government, inter-governmental organization, or treaty.
The institution must not have been established solely in conjunction with the gTLD
application process’.
13.2 The Objector is a not-for-profit association that has been in existence since 1967,
originally under the name ‘General Association of International Sports Federations’ and(since 2009) under the name ‘SportAccord’.

(Objection Annex 8).

Constituted inaccordance with and registered as an association under Articles 60-79 of the Swiss Civil
Code, it functions as an umbrella organisation and representative body for its members,
which are international sports federations and the organisers of international sports
events, recognised as such by the International Olympic Committee, the body that heads
the international sports movement. (Objection Annex 7, p.2). It started with 26 members
and today it has 107 members, of which 91 are international sports federations and the5other 16 are organisers of international sports events (such as the CommonwealthGames Federation). (See Objection Annex 2).
13.3 The Applicant does not challenge the accuracy of any of these facts. Instead, it simply
asserts that ‘independent evidence’ of the existence of the Objector is required, and that
copies of its Statutes and a membership list that the Objector drafted itself do not satisfy
this requirement. (Response p.6).
13.4 The Applicant does not cite any authority for this proposed requirement, and in fact as far
as the Expert is aware there is not such requirement. To the contrary, according to the
Guidebook, an institution’s existence ‘may’ be demonstrated by ‘public historicalevidence of its existence, such as the presence of a formal charter or national orinternational registration, or validation by a government, inter-governmental organization,
or treaty’. (Guidebook, section 3.2.2.4). The ‘may’ indicates that this is optional, notmandatory, i.e., other evidence may suffice. The Objector has provided not only a copyof its Statutes (a formal legal document constituting it as an association under Swiss law)
but also details of its registration as an association under Swiss law (see Objection
Annex 9). More importantly, however, looking beyond the form to the substance, theApplicant has not actually disputed the Objector's account of its creation, its history, andits current membership. As a result, it is more than clear, in the Expert's view, that the
Objector's existence as an established institution has been sufficiently evidenced.
14.

Next, is the community on behalf of which the Objector claims to bring the objection 'a clearlydelineated community'?:
14.1 According to the GNSO Final Report, the term ‘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’. (GNSO
Final Report, Implementation Guideline P). According to the Guidebook, factors that
may be considered in determining whether the 'community' identified by the objector is aclearly delineated community ‘include, but are not limited to, … the level of formalboundaries around the community’.
14.2 The Objector says that it represents 'the Sport community' (Objection p.6), i.e., 'thecommunity of individuals and organizations who associate themselves with Sport. Sportis activity by individuals or teams of individuals, aimed at healthy exertion, improvementin performance, perfection of skill, fair competition and desirable shared experience
between practitioners as well as organizers, supporters and audience'. (Objection p.8).
It asserts that this community is 'highly organized on local, national and international
level.

It is clearly delineated by way of its organizational structures and its values'.

(Objection p.6). It explains: 'At the base level, the Sport community is structured into
local clubs and event organizers. At higher levels, Sport community governance is by6

regional, national, and international Sport federations. The Federations collaborate at
the local, national and international levels in Sport events or with event organizers,
governments, the various bodies of the Olympic Movement, and within associations offederations.

SportAccord itself, the Objector, is an association comprising 107

International Sport Federations. Individual practitioners of sport, sport spectators, sportfans and sport sponsors are part of the Sport community and share its values andobjectives. Above all, all members of the Sport community accept the organizational
principles and rules of the Sport community and the specific group or sport discipline
they associate themselves with'. (Objection pp.8-9).
14.3 The Applicant asserts that the Objector has 'failed to identify what comprises [thecommunity of individuals and organizations who associate themselves with Sport] or
what "boundaries" surround it', and instead is holding itself out as representing a'boundlessly wide group'. (Response p.6). That group is 'too broad, diverse and wideranging in interests to be "clearly delineated".' (Response p.7). The Applicant also notesthat there are various parties involved in ‘the world of sport’ that are not affiliated to thecommunity

identified

by

the

Objector

(such

as

spectators,

enthusiasts,

andcommentators, and all those connected with sports whose international federations are
not in membership of the Objector), i.e., even if the ‘Sport community’ identified by the
Objector is a valid community, it does not cover everyone in ‘the world of sport’.
(Response p.6).
14.4 The Expert agrees that 'the community of individuals and organizations who associatethemselves with Sport', on its face, is a very broad group with no clearly delineatedboundaries.

If the Objector had stopped there, then the Expert considers that the

Applicant would be right that the Objector had failed to satisfy this requirement.
However, the Objector does go on to make clear (in the passages quoted at paragraph
14.2, above) that it is referring to the individuals and organisations who associatethemselves with organised sport, i.e., sport that is sanctioned and conducted inaccordance with a common set of rules that are applied and enforced throughout the
sport through a pyramid system of governance and control that has the IOC and theinternational federations at its apex, member regional federations below them, member
national federations below them, and regional, league, club and individual members
below them.
14.5 In the Expert's view, this is a 'clearly delineated' community (or, as the Applicant has put
it [Application p.7], a 'well-established and closely connected group of people ororganizations'). Either you participate in official, sanctioned forms of the sport, thereby
submitting yourself to be bound by and to comply with the uniformly applicable rules andregulations of that sport (either by becoming a member yourself, or by playing for amember team or in a sanctioned competition), or you participate in informal,

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unsanctioned and unofficial forms of sport. Either you follow these official, organised
forms of sport (because you are attracted by their adherence to a uniform set of rules) or
you follow other (unsanctioned and unofficial) forms of sport.

This is the clear

distinguishing feature of members of the community identified by the Objector. As the
Objector puts it, '[a]bove all, all members of the Sport community accept theorganizational principles and rules of the Sport community and the specific group or sportdiscipline they associate themselves with'. (Objection p.9). To make the distinction
clear, this ‘Sport community’ that the Objector refers to (i.e., individuals andorganisations who have committed themselves to a common enterprise of officiallysanctioned sport, governed and regulated by international federations and their members
who are recognised by the International Olympic Committee as the sole and authoritative
governing bodies of their respective sports) may be more accurately referred to as the'Organised Sports Movement'.

That is how the Expert will refer to it below; andreferences by the Objector to the ‘Sport community’ are to be taken to be references tothis ‘Organised Sports Movement’.
14.6 The Applicant also asserts that the word ‘sport’ has an 'infinite number and variety of
meanings and perceptions', which means it is impossible to delineate any community
meaningfully as a ‘sport’ community. (Response p.5). It insists that '[s]ports is too broada term for any person or organization to claim what would amount to ownership over it'.
(Response p.6). The Expert agrees that ‘the world of sport’ encompasses not only theOrganised Sport Movement but also individuals and organisation that prefer informal,
unsanctioned and unofficial forms of sport. But that does not mean that those who preferformal, sanctioned official forms of sport do not form a clearly delineated community.
Properly understood, this is not an argument that the ‘Organised Sports Movement’
identified by the Objector is not clearly delineated. Rather it is a separate and distinct
argument that the Organised Sports Movement is not synonymous with the gTLD inissue (<.SPORTS>). That argument is addressed at paragraph 15 below.
15.

Next, is the Objector 'associated with' the Organised Sports Movement?
15.1 According to the Guidebook, factors that may be considered in determining whether theobjector is associated with the community in question ‘include, but are not limited to, thepresence of mechanisms for participation in activities, membership, and leadership;
institutional purpose related to the benefit of the associated community; performance ofregular activities that benefit the associated community; …’. (Guidebook p.3-8).
15.2 The Objector explains that its Statutes create clear mechanisms for international sports
bodies to become members of its General Assembly and for individuals from thosebodies to be appointed to its governing Council.

(Objection p.7).

It notes that 91

international federations have become members, as well as 16 organisers ofinternational sports events. It explains that its mission and its activities include helping
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its members to govern and regulate their sports more effectively by addressing issues ofcommon interest and concern to them, including establishing permanent liaisons
between the international federations, defending their common goals and objectives,preserving their autonomy, and administering programmes for good sports governance,social responsibility, doping-free sport, and the fight against match-fixing and illegal
betting. (Article 2 of the SportAccord Statutes, Objection Annex 1).
15.3 The Applicant does not dispute any of the above.

Therefore its assertion that the

Objector 'lacks any significant relationship with a substantial portion of the community it
claims to represent' (Application p.7) must be based on the premise that the Objector isclaiming to represent not just the Organised Sports Movement but rather ‘the [whole]world of sport’.

Once it is clarified that the community that the Objector claims torepresent is the Organised Sports Movement, this argument falls away: it is clear that
the Objector, with its 91 international federation members, has a significant relationshipwith the Organised Sports Movement. Indeed, one of its functions is to represent them inmatters of common interest, such as this Community Objection.
16.

Finally, is the Organised Sports Movement strongly associated with the string <.SPORTS>?
16.1 This seems to the Expert to be self-evident.

While there are people who prefer toparticipate in or follow unofficial, informal and unsanctioned forms of sport, the vast
majority prefer to participate in or follow sports that are official and sanctioned by IOCrecognised international federations and their members, and so are played inaccordance with their system of uniform rules and regulations. The Objector notes that ithas 91 international sports federations in membership, between them those international
federations have an estimated 15,000 member national federations, who have an
estimated 5 million club members, and (between them) tens or hundreds of millions ofindividual athletes participating in their respective sports. Many million more members of
this community do not participate themselves but follow their sports as fans or ascommercial partners (such as sponsors) who seek to associate themselves with those
sports. Therefore, although the Organised Sports Movement may not encompass thewhole of ‘the world of sport’, it encompasses the vast majority of it. The Expert accepts
the Objector’s assertion (Objection p.10) that when that vast majority (many millions oforganisations and individuals around the world) think of sports, they must obviously think
predominantly (if not exclusively) of official, sanctioned forms of sport that are governed
and regulated by means of the pyramid model described above.
16.2 The Applicant asserts that this requirement (proof that the community is 'strongly
associated with the applied-for gTLD') means 'in other words' that 'the word "sports" mustreadily and essentially solely bring Objector's organization to mind. Merely stating that
proposition reveals its folly'.

(Response p.6).

First, however, the ‘Objector’sorganization’ may not be the same as the ‘community’ that the Objector claims to9represent.

But even if one reads ‘Objector’s community’ in place of ‘Objector’sorganization’, the Expert does not agree that that is an appropriate reformulation of therequirement: 'strongly associated with' is not the same as 'readily and essentially solely
brings to mind'. The word 'sports' may not 'solely bring to mind' the Organised Sports
Movement, but it is 'strongly associated with' that movement.
16.3 Alternatively, the Applicant says the Objector must show that the applied-for gTLD is'uniquely or nearly uniquely' identified with the community the Objector is representing.
The Applicant says that the Objector does not meet this requirement, because there arepeople who are not in the community that the Objector purports to represent who could
nevertheless be identified with 'sports'. (Response pp.6-7).
16.4 The Expert agrees that the Objector does not meet this alleged requirement: there arepeople in ‘the world of sport’ who are not adherents to the Organised Sports Movement.
But is it actually a requirement? In support of this alleged requirement, the Applicant
asserts

that'ICANN

designedthecommunity

objection…

"toprevent

themisappropriation of a string that uniquely or nearly uniquely identifies a well-establishedand closely connected group of people"' (Response at p.6), and (again) that 'ICANN
envisioned' that the community on whose behalf an objection was brought would be'"uniquely or nearly uniquely" identified' by the applied-for gTLD. (Ibid. p.7). The Expert
interprets these remarks as a suggestion that ICANN has said that an objector on behalfof a community must show that the applied-for gTLD must be 'uniquely or nearly
uniquely' identified with the community represented by the objector. However, the quote
does not come from the Guidebook; and upon inspection of the document from which theApplicant has taken the quote (ICANN's 'New gTLD Program - Summary Report andAnalysis of Public Comment – Applicant Guidebook Excerpts and Explanatory
Memoranda'), it transpires that the words quoted are not the words of ICANN, but rather
the words of a private company called eNOM, asserting (as part of its comments on theJuly 2009 draft of the Guidebook) what it contends the objective of the Community
Objection is (or should be). In its 'Commentary and Proposed Position' on the commentson that section of the Guidebook, ICANN does not endorse the eNOM comment, instead
simply saying that 'the established criteria' (i.e., those set out in the draft Guidebook)should be used. And (as already noted) eNOM’s proposed gloss on the Community
Objection criteria did not make its way into the final version of the Guidebook issued inJune 2012.
16.5 As a result, the Expert considers this submission by the Applicant, which is clearly
intended to induce the Expert to reject the Objection, to be extremely misleading. This is(at the very least) unfortunate.

In any event, contriving an argument to support a

particular position (here, that the Objection should be rejected) creates a strong10inference that there is no valid argument for that position.

More generally, it doesnothing for the Applicant’s credibility.
16.6 As a result, the Expert rejects the suggestion that the Objector must show that<.SPORTS> uniquely or nearly uniquely identifies the Organised Sports Movement. The
fact that not every single person who participates in or ‘consumes’ sport in one way or
another is a member of the Organised Sports Movement does not mean that the
Objector does not meet the standing requirements, properly construed.
17.

Based on the foregoing, the Expert determines that the Objector meets all of the standing
requirements set out in the Guidebook, and therefore has standing to object to the Application.

D.

FINDINGS IN RELATION TO THE SUBSTANTIVE REQUIREMENTS FOR A COMMUNITYOBJECTION (SECTION 3.5.4 OF THE GUIDEBOOK)

18.

There is a presumption in favour of granting new gTLDs, and therefore a corresponding burden
on those who object to an application for a new gTLD to show why the application should not
be granted. (See Guidebook, section 3.5). To sustain a Community Objection, the objector
must show that ‘there is substantial opposition to the gTLD application from a significant portionof the community to which the gTLD string may be explicity or implicitly targeted’. (Ibid., section
3.2.1). According to section 3.5.4 of the Guidebook, in order to do that, the Objector mustsatisfy each of the following four substantive requirements. If it does so, it has made therequisite showing; if it does not, then it has not.
D.1

19.

The Objector must prove that the community it invokes is 'a clearly delineatedcommunity'

The Guidebook states: ‘The objector must prove that the community expressing opposition canbe regarded as a clearly delineated community. A panel could balance a number of factors todetermine this, including but not limited to: the level of public recognition of the group as acommunity 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 thecommunity has been in existence; the global distribution of the community …; and the numberof people or entities that make up the community. If opposition by a number of people/entities
is found, but the group represented by the objector is not determined to be a clearly delineatedcommunity, the objection will fail’.

20.

The Objection proceeds on the basis that this requirement – proof that the community invokedby the Objector is a ‘clearly delineated community’ – is the same as the second of the standing
requirements (that the Objector shows that that the community that it claims to be associatedwith is ‘a clearly delineated community’).

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21.

The Applicant in contrast asserts that the test here must be 'more stringent' than the test
applied in the context of standing, because 'ICANN would have no reason to make "clearlydelineated" a substantive element of objection if it meant nothing more than the criterion forstanding. Rules "should be interpreted so as not to render one part inoperative".' (Responsep.7).

It therefore proposes the following test:'Objector must show that the string itself

describes a clearly delineated community', and then notes that 'sports' means many different
things, and therefore does not meet that test. (Ibid. pp.7-8).
22.

The Applicant's argument is superficially attractive. The Expert does not accept it, however, forthe following reasons:
22.1

Where a set of rules uses a specific phrase ('clearly delineated community') twice, itwould be strange to interpret that phrase one way the first time it appears and anotherway the second time it appears. It is so counter-intuitive that absolutely compelling
grounds would be required to adopt that approach.

22.2

Without wishing to split hairs, technically speaking, interpreting the phrase in the sameway each time it appears does not render the second requirement 'inoperative' (as the
Applicant suggests) – the Objector has to show that he meets it. Rather, it renders thesecond requirement redundant (because it does not add anything to what has gone
before).

Redundancy is never ideal, but the Expert does not consider it to be acompelling reason to construe the same phrase differently in two parts of the same
rule.
22.3

The fact that the Applicant suggests that 'clearly delineated community' as it appears in
the first substantive requirement should be construed to mean that 'Objector must showthat the string itself describes a clearly delineated community' is both ironic (because
the Applicant has also suggested that that is how the second standing requirement
should be construed, i.e., it proposes the same redundancy that it says the Expert
should avoid) and unhelpful to the Applicant (because it is a repeat of the requirementthat the Applicant suggested – wrongly – was an ICANN requirement). (See paragraph16.4 above).

22.4

While there is no system of binding precedent in an expert determination, the Expert
does place reliance on the fact that another expert, construing exactly the same rules,
has found that the first substantive requirement adds nothing beyond what is requiredby the second standing requirement: see Expert Determination dated 3 September
2013 (<.FLY>), Case No. EXP/493/ICANN/110, para 13.

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23.

As a result, since the Expert has already found (in the context of the second standing
requirement) that the community that the Objector invokes in the Objection (i.e., the Organised
Sports Movement) is a clearly delineated community, it follows that the Objector has alsosatisfied this first substantive requirement.
D.2

24.

The Objector must prove that the opposition to the Application by the community
invoked by the Objector is substantial

The Guidebook states (at section 3.5.4, p.3-23):‘The objector must prove substantial

opposition within the community it has identified itself as representing. A panel could balance a
number of factors to determine whether there is substantial opposition, including but not limited
to: number of expressions of opposition relative to the composition of the community; therepresentative nature of entities expressing opposition; level of recognised stature or weight
among sources of opposition; diversity amongst sources of expressions of opposition, including
regional, subsectors of community, leadership of community, membership of community;
historical defence of the community in other contexts; and costs incurred by objector in
expressing opposition, including other channels the objector may have used to convey
opposition. If some opposition within the community is determined, but it does not meet thestandard of substantial opposition, the objection will fail’.

The Applicant suggests that the

Objector must establish each of these factors (Response p.8), but in fact the words quoted
make it clear that these factors are not an exhaustive list of potentially relevant factors, and that
therefore the Objector may meet its burden by establishing all of them, or some of them, oreven none of them, provided that it establishes enough relevant factors (which may or may not
be factors listed in the Guidebook) to outweigh any countervailing factors established by the
Applicant.
25.

The Objector states that it has received 'not just significant, but overwhelming' support for the
Objection from the community it represents (i.e., the Organised Sports Movement). (Objectionp.10). It notes that its Executive Committee, on whose authority the Objection has been filed,speaks for its entire membership, i.e., the 107 international sports federations/event organiserslisted at Annex 2 to the Objection. It also submits with the Objection individual statements ofsupport for the Objection from 55 of those members, as well as further statements of support
from the International Olympic Committee (the body at the apex of the Olympic Movement) andthe World Anti-Doping Agency (a foundation made up of representatives of both the Olympic
Movement and public authorities). (Objection Annexes 3 and 4).

26.

The Applicant’s contention that this does not represent a 'meaningful number of expressions of
opposition' from the community in question appears to be premised on that community being
anyone with any interest in any form of sport. Once it is clarified that the ‘Sport community’ towhich the Objector refers is actually the Organised Sports Movement, that contention falls
away: the IOC and 55 international federations, as well as WADA, are a meaningful portion of
the Organised Sports Movement by anyone’s reckoning.
13

27.

The Applicant’s challenge to the ‘stature of those ostensibly voicing opposition’ is also rejected:
the IOC, WADA and the international federations in membership of the Objector are theultimate governing bodies of organised sport; there is no higher authority than them.

28.

Accordingly, the Expert finds that the Objector has also satisfied this second substantive
requirement.
D.3

29.

The Objector must prove that there is a strong association between thecommunity it represents and the applied-for gTLD string

The Guidebook states (at section 3.5.4):‘Targeting.

The objector must prove a strong

association between the applied-for gTLD string and the community represented by theobjector. Factors that could be balanced by a panel to determine this include but are notlimited to: statements contained in application; other public statements by the applicant; andassociations by the public. If opposition by a community is determined, but there is no strong
association between the community and the applied-for gTLD string, the objection will fail’.
30.

Once again, this appears to be a repeat of one of the standing requirements, namely the third
requirement that the community with which the objector is associated is itself ‘strongly
associated with the applied-for gTLD string in the application that is the subject of theobjection’. (See paragraph 16 above). Given the identical wording, the Expert considers that,absent compelling reason, they must mean the same thing in both contexts, and therefore
satisfaction of the standing requirement inevitably means satisfaction of the third substantive
requirement as well. Once again, the Expert draws support for that conclusion from the factthat the expert in Expert Determination dated 3 September 2013 (<.FLY>), Case No.
EXP/493/ICANN/110, para 13, took the same approach.

31.

Is there anything in the submissions that the parties make on this point that compels a different
conclusion in this context? The only new elements are the concepts of ‘explicit targeting’ and‘implicit targeting’, which the parties deploy to show (or to refute) the required association
between the Organised Sports Movement and <.SPORTS>. This is presumably because therelevant sub-paragraph in section 3.5.4 (quoted at paragraph 29 above) is headed ‘Targeting’,
but then no mention is made of those concepts as factors of possible relevance to this third
substantive requirement. Instead, the concepts are only specifically mentioned in the context ofthe fourth substantive requirement. (See paragraph 38 below). This is slightly strange, but theExpert is content to review the submissions on ‘explicit targeting’ and ‘implicit targeting’ at thisstage to see if anything in them compels him to depart from the conclusion previously reached(in the context of the standing requirements) that the Organised Sports Movement is strongly
associated with the <.SPORTS> gTLD.

32.

According to the GNSO Final Report, ‘explicit targeting means there is a description of theintended use of the TLD in the application’. This must mean ‘a description of the intended useof the TLD in the application that reveals that it is targeted at’ the community in question. The
14

Objector argues that it must be found that the Application explicitly targets the Sport community
the Objector represents, because if 'there is an ICANN community, it would be contradictory topretend that there is no such thing as a Sport community'. (Objection p.10). With respect, theExpert finds this argument very difficult to follow. In response, the Applicant states that theexpress purpose of applying for this gTLD is 'maximising Internet participation', to which end it
will 'encourage inclusiveness in the registration policies'. It says: ‘This TLD is a generic term
and its second level names will be attractive to a variety of Internet users. No entity, or groupof entities, has exclusive rights to own or register second level names in this TLD.' In otherwords, the intended use of the TLD is 'open and the string itself is not tied to a specificcommunity'.

Therefore it is not targeted at any specific community.

(Application p.9).

However, the Expert does not believe that it follows that because the <.SPORTS> TLD will bemade available to anyone, whether they are a member of the Organised Sports Movement or
not, therefore use of that TLD cannot be targeted at that community. This factor seems neutral
at best.
33.

According to the GNSO Final Report, ‘implicitly targeting means that the objector makes anassumption of targeting or that the objector believes there may be confusion by users over its
intended use’. On its face, this looks like a subjective test (i.e., does the Objector actually
make such assumption/hold such belief?) rather than an objective test (is the assumption/belief
reasonable?), which is slightly unusual (usually an objective approach is taken), although notunheard of. However, the Expert would normally want any subjective assumption or belief tobe shown to be objectively reasonable.

34.

The Objector certainly states a subjective assumption and belief that the intent and/or the effectof the use of the <.SPORTS> gTLD will be a targeting of the Organised Sports Movement. It
asserts that 'modern usage' of the word 'sport' is almost exclusively associated with organised
sport (i.e., what the Expert has termed the Organised Sports Movement) and thus the gTLD<.SPORTS> is clearly targeted at organised sport. (Objection p.10). It also asserts a belief
that the gTLD will give associated websites 'a false sense of official sanction' that could confuse
users into thinking their content is issued by or endorsed by the Organised Sports Movement.
(Ibid).

35.

The Applicant’s response is (i) to deny that the word ‘sports’ mainly calls to mind organised
sports (rather, it 'represents a generic form of activity and expression'); (ii) to insist that
therefore <.SPORTS> is not targeted exclusively at organised sports; and (iii) to assert that the
Objector has not provided any evidence to support its belief that use of the gTLD may cause
confusion among Internet users as to whether or not content on the associated <.SPORTS>
websites is endorsed by the Organised Sports Movement. (Application p.9).

36.

The Expert has already rejected the first two of these contentions in the context of the standing
requirements, including pointing out that there is no requirement that the .SPORTS gTLD must
only call to mind the organised sports movement. (See paragraph 16 above). The Expert also15

considers the Objector’s belief that use of the gTLD may cause confusion among Internet users
as to whether or not content on the associated <.SPORTS> websites is endorsed by theOrganised Sports Movement to be a reasonable belief. (See paragraph 43.3, below).
37.

As a result, the Expert sees no compelling reason to depart from his conclusion (in the context
of the standing requirements: see paragraph 16 above) that there is ‘a strong association’between the <.SPORTS> gTLD and the Organised Sports Movement.
D.4

38.

The Objector must prove that the Application creates a 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

Finally, the Guidebook states (at page 3-24): ‘The objector must prove that the application
creates a likelihood of material detriment to the rights or legitimate interests of a significant
portion of the community to which the string may be explicitly or implicitly targeted’.

39.

The Expert does not consider that the reference to ‘the community to which the string may be
explicitly or implicitly targeted’ adds anything material to the already-discussed requirement of
proof that the community that the objector is associated with is itself ‘strongly associated withthe applied-for gTLD string in the application that is the subject of the objection’ for purposes ofstanding (see paragraph 16 above) and of proof of ‘a strong association between the appliedfor gTLD string and the community represented by the objector’ in the context of the third
substantive requirement (see paragraphs 29-37 above). Since the Expert has already foundthat those requirements are satisfied, including finding it reasonable to believe that websites
using the string <.SPORTS> will be at least implicitly targeting the Organised Sports Movement(see paragraph 29 above), it follows that this part of the fourth substantive requirement is also
met.

40.

That leaves the question of whether the Applicant's proposed operation of the string ‘creates alikelihood of material detriment to the rights or legitimate interests of a significant portion of’ theOrganised Sports Movement. The Guidebook provides the following guidance on this issue (atpage 3-24): ‘An allegation of detriment that consists only of the applicant being delegated thestring instead of the objector will not be sufficient for a finding of material detriment. Factorsthat could be used by a panel in making this determination include but are not limited to: natureand extent of damage to the reputation of the community represented by the objector thatwould result from the applicant's operation of the applied-for gTLD string; evidence that theapplicant is not acting or does not intend to act in accordance with the interests of thecommunity or of users more widely, including evidence that the applicant has not proposed ordoes not intend to institute effective security protection for user interests; interference with thecore activities of the community that would result from the applicant’s operation of the appliedfor gTLD string; dependence of the community on the DNS [domain name system] for its core
activities; nature and extent of concrete or economic damage to the community represented by

16

the objector that would result from the applicant's operation of the applied-for gTLD; and levelof certainty that alleged detrimental outcomes would occur’. Again, the Objector does not haveto establish that each of these factors is present in order to sustain its burden. It can invoke
some of these factors (and/or other factors that it can show are relevant), and those factors arethen balanced against any countervailing factors established by the Applicant. However, since
the Objector has the burden on this point as well, the factors it invokes must outweigh any
factors invoked by the Applicant, or else the Objection must be rejected.
41.

The Objector's submissions on this point (Objection pp. 11-18 and related annexes) can besummarised as follows:
41.1

First, the Objector contends that the Organised Sports Movement would suffer both
economic and reputational damage from the Applicant’s operation of the <.SPORTS>
gTLD, because the Applicant’s intended operation of the gTLD would 'disrupt Sport
community policies, promote ambush marketing, increase cybersquatting and abetabuse in a way that specifically targets the Sport community'. This argument runs asfollows:
41.1.1 The Organised Sports Movement already suffers serious detriment from users'
abuse of the 22 existing TLDs to target and exploit the reputation and goodwillof the Sport community, including ambush marketing and brand jacking, cybersquatting and typo-squatting. (For example, the IOC alone already has to deal
each year with between 5,000 and 10,000 domain name registrations that
infringe its rights [Objection Annex 11], and approximately 4,500 Olympicrelated domains are removed from major domain auction services each year;
while the IOC has been forced to register and maintain 'hundreds of defensive
registrations in many existing TLDs'). Another well-established type of abuse is
the misuse of sports themes for pornography (e.g., Olympicporn.com).
41.1.2 The <.SPORTS> gTLD will be an even more effective means for abusers totarget and exploit the reputation and goodwill of the Organised Sports
Movement, because that TLD 'convey[s] implicit credibility' and will give therelated websites 'a false sense of official sanction'. The Objector asserts that
this 'would inevitably erode consumer trust by misleading individuals throughunofficial content'. For example, if users were to use the ‘false sense of
official sanction’ arising from the <.SPORTS> gTLD to give credibility to
websites selling tickets to sports events that they do not have and/or do nothave the right to re-sell, so that the purchaser is defrauded out of his or her
money, which would 'destroy consumer confidence and trust in the respective
organizers and jeopardise events'.

17

41.2

The Objector also contends that the Applicant’s proposed operation of the <.SPORTS>
gTLD would interfere with the Organised Sports Movement’s use of the Internet topromote the integrity of organised sport and to promote public confidence in the abilityof the Organised Sports Movement to preserve that integrity. This argument runs asfollows:
41.2.1 The Organised Sports Movement relies on mass communication via theInternet on issues such as anti-doping, anti-drug, anti-racism, ticket scalping
and gambling to protect public confidence in the integrity of sport and in theability of sports governing bodies to protect that integrity.
41.2.2 The Objector notes that the Applicant’s policy of unrestricted access would
inevitably mean that ‘a large number of the .sport(s) domain holders in such aregime would be outside of the sport community’, using the gTLD not only to
exploit improperly the goodwill and other assets of the Organised Sports
Movement, but also in ways that will distort and contradict the messages that
the Organised Sports Movement is seeking to send about the integrity andvalues of (organised) sport.
41.2.3 Visitors to <.SPORTS> websites may perceive, because of that TLD, that thecontent of those sites is linked to, and even sanctioned by, the Organised
Sports Movement.

Unscrupulous users may take advantage of this tosuggest, for example, that doping products (e.g., supplements) or gamblingproducts that they are selling are connected officially to/endorsed by theOrganised Sports Movement.

This may cause athletes to believe that

substances such as steroids are officially sanctioned when their use is in factprohibited; and/or may lead followers of a sport to believe that its governing
bodies are not in fact firmly opposed to activities that have the potential tocorrupt that sport (such as certain inappropriate or illegal gambling activities),and so to lose confidence in the strength and commitment to integrity of theOrganised Sports Movement.
41.2.4 The Objector asserts that the sheer number of existing domain names
containing doping-related keywords (Objection Annex 15) illustrates the risk
to the credibility of sport that a sports-specific gTLD would present.
41.2.5 The Objector also highlights the risk of racist content or innuendo appearing
with a 'false aura of official sanction', and the difficulty in ensuring removal ofsuch content due to a lack of legal mechanisms and practical access. It isalso concerned about 'content inducing dangerous and violent behaviour'.

18

41.3

The Objector asserts that sports bodies 'would have considerable difficulties in getting
such content removed because of a lack of legal instruments and practical access',
i.e., because the existing ICANN anti-abuse policies are of limited effectiveness,being expensive, burdensome, and impracticable in many respects. For example,'IOC has filed numerous UDRP complaints. However, UDRP proceedings are too
costly for systematic use'.

It is therefore concerned about creating many further

opportunities for abuse (indeed, more targeted abuse) through the <.SPORTS>
gTLD. It says the only way to prevent abuse of the kind it has identified would be tosubmit the gTLD operator to ‘a sport-specific acceptable use policy covering general
sports values and sport-related economic interests, such as safeguards against
ambush marketing’, and to make it accountable to the Sport community forcompliance with that policy, by means of 'direct oversight before and after domain
registration, as well as a path for rapid corrective or disciplinary action … ‘.
Otherwise, for example, 'an unaccountable operator of a .sport TLD will not be willingor able to monitor its name space with respect to doping-abetting content' and istherefore 'certain to encumber community efforts against doping'.
41.4

The Objector notes that the Applicant 'lack[s] accountability to the Sport community'
and that 'the TLD policies described in [the Application] are devoid of any oversightmechanism specific to the Sport community'. It asserts that, rather than having aninterest in 'protecting the official message and image of the [Organised Sport
Movement]', the Applicant 'has a pecuniary interest in maximising the registration of
second-level domain names, including unauthorized registrations of community
stakeholders' names, variants of those names, and misspellings of those names'. It
notes in this regard that Donuts (the Applicant’s parent company) is closely
associated with Demand Media Group (Response Exhibit 1, Q.23), which has had 22
rulings against it since September 2008 for bad faith domain name registrations, typosquatting, and cyber-squatting. (Objection Annex 12, email dated 28.07.12, para 7).
It notes that Demand Media Group has an option to 107 of the gTLDS for which
Donuts and its affiliates have applied. (Objection p.26).

41.5

The Objector asserts that, as a result of the above, the Olympic Sports Movement will
suffer substantial monetary damage, but also reputational damage, and damage tothe values and image of sport (Objection p.17, and Annex 13); ICANN and internet
governance capabilities will be overloaded; and society will lose the benefits that
could have been achieved through responsible management, as well as anopportunity to create a 'powerful organizational tool' (just as the .edu TLD washarnessed in the US for educational benefits rather than monetised). The Objector
asserts that these effects will be 'largely irreversible', in that they will 'destroy theimage of the domain', and 'it will not be possible to clean it up and get the public to"unlearn" the perception of abuse and chaos'.
19

42.

In response, the Appellant makes the following submissions:
42.1

The Applicant acknowledges the risks of cyber-squatting and similar forms of abuse,
but asserts that it is 'committed to safeguards that surpass ICANN's requirements forthe new TLDs' that will 'reduce the extent of bad behaviour seen in large registries
now'.

(Response Annex 10).

It asserts that the Objector 'tenders not a shred ofevidence that Applicant's proposed string would create any greater or different harm to
the sport "community" than it apparently experiences under the existing regime'.
(Response p.10). In other words, if harm arises, it will not have been caused by the<.SPORTS> gTLD. (Ibid.).
42.2

The Applicant openly acknowledges and indeed seeks to make a virtue out of the factthat it 'will not limit eligibility or otherwise exclude legitimate registrants in second level
names'. (Response Annex 3 p.12). For example, it says that it would give access tothe <.SPORTS> gTLD to 'bloggers, athletes, enthusiasts, and even those notspecifically identified with the term'. (Response p.4). However, the Applicant disagrees
with the Objector that this will cause material detriment to the Organised Sports
Movement. In particular, it says that it will put in place registration policies that include
the 14 mechanisms required by ICANN for the new gTLDs, but also ‘eight innovativeand forceful mechanisms and resources that far exceed [those] already powerfulprotections’, to 'address the exact type of concerns raised by Objector'. (Response tab
3, Exh 1). It asserts that these mechanisms 'protect and eradicate abuse, rather thanattempting to do so by limiting registrant eligibility'. (Response tab 3 Exhibit 1, p.11).

42.3

The Applicant acknowledges these policies will not prevent the Olympic Sports
Movement losing domain names corresponding to non-trademark protected individuals,
events and organisations to speculators, but contends that this is a 'reasonable
consequence rather than a detriment' within the meaning of the Guidebook. (Responsep.12). It argues that it would be improper to give recognition in this context to anythingthat is not already protected by intellectual property law, and that imposing registration
restrictions as suggested by the Objector would 'hinder free speech, competition andinnovation in the namespace', which would be contrary to the objectives of ICANN.
(Response p.11).

42.4

In summary, the Applicant contends that 'the world of sport has not collapsed as aresult of the Internet, and will not do so with a new gTLD that provides greater
protections than cyberspace has ever known'. (Response p.13). It also asserts: 'In
essence, the Objection contends that harm will result unless Objector runs the domain.
That notion stands for the one proposition that ICANN has expressly stated cannot form
the basis for a finding of detriment: "An allegation of detriment that consist of only theapplicant being delegated the string instead of the objector will not be sufficient for afinding of material detriment"’. (Response p.5).
20

43.

The Expert’s analysis of the foregoing factors identified by the parties is as follows:
43.1

The Applicant does not dispute that use of current TLDs includes abusive use that
unfairly prejudices the intellectual property rights of members of the Organised Sports
Movement. It simply says that there is no evidence that such abuse will be ‘any greateror different’ if the Applicant is delegated the <.SPORTS> gTLD. That does not seem tothe Expert to be a very attractive argument. The test is whether the Objector can show
any detriment from the proposed use of the new gTLD; there is nothing to suggest thatdetriment of the type that it already suffers from abuse of the existing TLDs should be
excluded for these purposes. And in any event, the creation of the new TLD would at
the very least create many more opportunities for such abuse (and a concomitantly
increased burden on the Organised Sports Movement to identify and try to take action
against such abuse). And if it is correct that the new gTLD risks giving new sites andtheir content an aura of official sanction (which the Expert finds to be a reasonableassertion: see paragraph 43.3 below), then not only are there more opportunities forabuse, but the risk of detriment is greater from them. As a result, the Expert considers
that this factor tips in favour of the Objector.

43.2

Furthermore, the Applicant openly acknowledges that it will grant use of domain names
corresponding to non-trademark protected individuals, events and organisations to
speculators. It simply says that this is not a detriment but a ‘reasonable consequence’of the freedoms contemplated by the new gTLD programme. This seems to the Expert
to boil down to the following question: assuming that such conduct does not infringe aformal legal ‘right’ of those members of the Organised Sports Movement, does theOrganised Sports Movement nevertheless have a ‘legitimate interest’ in preventing
speculators creating and exploiting an unauthorised association between their websites
and the individuals, events and organisations in question for their own commercial andother purposes, and to the detriment of those individuals, events and organisations?
The Expert sees no reason why this should not be recognised as a ‘legitimate interest’in this context. The Applicant’s assertion that doing so would 'hinder free speech,
competition and innovation in the namespace' seems to the Expert to beg the question.
The purpose of the new gTLD programme is indeed stated to be to promote freespeech, competition and innovation.

However, the creation of the ‘Community

Objection’ mechanism reflects an acknowledgement that those are not absolute values,
but instead can and should be subject to proportionate restrictions where necessary to
avoid detriment to the rights and legitimate interests of a community. The balance isstruck by putting the burden of proof on the party making the objection on behalf of thecommunity to satisfy each of the elements of the Community Objection. Therefore, it
adds nothing to say that the Objector’s stance would 'hinder free speech, competition
and innovation in the namespace'. The only question is whether the required likelihoodof detriment to the rights or legitimate interests of the Organised Sports Movement has
21been shown. If so, then any hindrance of free speech, competition and innovation that
follows is necessarily justified, and so not a reason to reject the objection.
43.3

The Expert also considers that the Organised Sports Movement has a ‘legitimate
interest’ in preserving the integrity of sport and the authenticity of results, and inensuring the public has confidence in its readiness, willingness and ability to do so.
Indeed, unless sport is not only ‘straight’ but seen to be ‘straight’, then the public’s
confidence in uncertainty of outcome – the very essence of sport -- will becompromised, which would be nothing short of disastrous for the Organised Sports
Movement. Furthermore, the Expert agrees with the Objector that users of current
TLDs (particularly supplement companies) often do seek to suggest that the content of
their sites and/or the products they are selling are officially endorsed by the Organised
Sports Movement. (See, e.g., Kendrick v. ITF, CAS 2011/A/2518, award dated 10
November 2011, where an athlete was misled into taking a supplement that contained
a prohibited substance by the false claim on the manufacturer’s website that the
supplement had been ‘approved’ by the ‘World Anti-Doping Association’ [sic]).
Therefore, if the Objector is correct that the <.SPORTS> gTLD 'convey[s] implicit
credibility' and will give the related websites 'a false sense of official sanction', theExpert would agree that a likelihood of detriment to the legitimate interests of theOrganised Sports Movement has been established. The Expert has already found that
there is a ‘strong association’ between the <.SPORTS> gTLD and the Organised
Sports Movement, in that ‘when that vast majority (many millions of organisations andindividuals around the world) think of sports, they think of official, sanctioned forms ofsport that are governed and regulated by means of the pyramid model describedabove’. (See paragraph 16.1 above). That does not automatically mean that theywould assume that sites (or content on sites) with that string in their domain namewould necessarily be ‘official’ or ‘sanctioned’ content, but it is clearly reasonable to think
there is a risk that they might. For example, it is easy to see that a website with thedomain name 'olympic.sports' might be perceived by Internet users as having an auraof authenticity and official association with the International Olympic Committee and/or
the Olympic Games. As a result, this is also a factor that tilts in favour of finding the
detriment requirement met.

43.4

The Applicant does not make good its assertion that its intended registration policies
will 'address the exact type of concerns raised by Objector'. In fact, the ‘abuse’ that the
Applicant seeks to prevent in its policies appears to be confined to infringements ofintellectual property rights and ‘fraudulent activity’ such as distribution of malware,phishing, DNS hijacking or poisoning and spam. (Response p.10 and Exh. 1 Q28.3[TLD Anti-Abuse Policy]).

As noted above, the Applicant openly says it would notprevent ambush marketing through unauthorised use of famous names (because it
does not regard that as abusive). (See paragraph 42.3 above). Similarly, there is22nothing in the Applicant’s policies that would prevent users from operating their sites
and/or putting content on them in a manner that falsely suggested an association withor endorsement by the Organised Sports Movement. The Expert therefore accepts the
Objector’s submission that the Applicant ‘will not be willing or able to monitor its namespace with respect to doping-abetting content', thereby undermining the Organised
Sports Movement’s ability to fight against doping in sport. It is also relevant in thisregard that ICANN has said that '[w]hile ICANN will enforce obligations undertaken by
the registry operator in its agreement with ICANN, it is not ICANN's duty to supervise
the operation of new gTLDs and to ensure that communities are not hurt by thosegTLDs'.

(ICANN's 'New gTLD Program - Summary Report and Analysis of Public

Comment – Applicant Guidebook Excerpts and Explanatory Memoranda', p.21).
43.5

The Expert agrees with the Applicant that the Objector’s assessment of economic andother losses (including opportunity costs) is not particularly compelling. In particular,
the Objector has not been able to come up with a meaningful estimate of the economic
damage it would suffer if the Application were granted. That is not surprising, however,given the nature of the potential detriment identified by the Objector. Furthermore, andin any event, the detriment test under section 3.5.4 of the Guidebook is that of ‘alikelihood of material detriment’, not an actual, quantified damage. The Expert does notregard this as a sufficiently strong negative factor to outweigh the factors set out above.

43.6

Finally, the Applicant is correct that the Guidebook states ‘[a]n allegation of detrimentthat consists of only the applicant being delegated the string instead of the objector will
not be sufficient for a finding of material detriment’. However, as far as the Expert isaware, the Objector has not applied to have the gTLD <.SPORTS> delegated to it (only<.SPORT>). (Objection p.10). And in any event, the sorts of protections that the
Objector says would be required in connection with the exploitation of the <.SPORTS>
gTLD (i.e., a sports-specific acceptable use policy and a mechanism for making theoperator of the gTLD accountable to the Organised Sports Movement for enforcing thatpolicy) seem to the Expert to be measures that could be put in place by any entity, notonly an entity that was part of the Organised Sports Movement. As the Expert reads
the Objection, the Objector does not suggest otherwise.

44.

Balancing all of these factors, the Expert considers that the factors of detriment to the rights andlegitimate interests of the Organised Sports Movement that have been established by the
Objector outweigh the contrary factors cited by the Applicant, and therefore the Objector has
met its burden of proof on this issue as well.

23

E.

DETERMINATION45.

For the reasons set out above, and in accordance with Article 21(d) of the Procedure, theExpert renders the following Expert Determination:
i. The objection is successful and therefore the Objector is the prevailing party.
ii. The Centre shall refund the Objector’s advance payment of costs to the
Objector in accordance with Article 14(e) of the Procedure.

………………………………………………………………..
Jonathan Taylor, Expert

24

Dated: 21 January 2014