THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/493/ICANN/110

FAIRSEARCH.ORG
(USA)
vs/
CHARLESTON ROAD REGISTRY INC.
(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.

EXPERT DETERMINATION IN
EXP/493/ICANN/110
Table of Contents

INTRODUCTION

2STANDARDS APPLICABLE TO COMMUNITY OBJECTIONS

5SUMMARY OF THE OBJECTION

7

SUMMARY OF THE APPLICANT’S RESPONSE

10FINDINGS OF THE EXPERT12Standing of the Objector

12

Objector as Institution

12

Relationship between Objector as Institution and a Clearly Delineated Community 13
Association between Community and gTLD String

15

Conclusion on Standing

15

Substantial Community Opposition

16

Likelihood of Material Detriment

17

CONCLUSION20DECISION

20

1

EXPERT DETERMINATION IN
EXP/493/ICANN/110
INTRODUCTION
1.

This Expert Determination arises out of a Community Objection (“Objection”) by
FairSearch.org (“Objector”) to the Application of Charleston Road Registry, Inc.
(“Applicant”), a wholly-owned subsidiary of Google, Inc., for the generic top
level domain (gTLD) “.fly” (Appl. No. 1-1141-48206).

2.

Objector’s address is :The Glover Park Group1025 F Street N.W., 9th floor
Washington, D.C. 20004-1409
United States of America

3.

The Objector is represented by :Ben Hammer
The Glover Park Group1025 F Street N.W., 9th floor
Washington, D.C. 20004-1409
United States of America
tel: 1 (202) 337-0808
email: bhammer@gpgdc.com;
cc email: gtld@gloverparkgroup.com

4.

The Applicant’s address is :Charleston Road Registry, Inc.
1600 Amphitheatre Parkway
Mountain View, California 94043
United States of America

5.

The Applicant is represented by :Sarah Falvey
Google Inc.
1011 New York Avenue, 2nd floor
Washington, D.C. 20005
United States of America
tel: 1 (202) 346-1230
email: sarahfalvey@google.com
and2

Brian J. Winterfeldt
Katten Muchin Rosenman LLP
2900 K Street N.W., North Tower, Suite 200
Washington, D.C. 20007-5118
United States of America
tel: 1 (202) 625-3562
email: brian.winterfeldt@kattenlaw.com
cc email: newgtld@kattenlaw.com

6.

The Expert in this case is :Professor George A. Bermann
Columbia Law School
435 West 116th Street
New York, New York 10027
United States of America
tel: 1 (212) 854-4258
email: gbermann@law.columbia.edu

7.

The principal procedural steps in this proceeding are as follows :The Objector filed its Objection on March 13, 2013.
The Applicant filed its Response on May 14, 2013.
The Expert was appointed on June 12, 2013.
The file was transferred to the Expert on July 17, 2013.
On July 22, 2013, the Expert contacted the parties by email, informing them that
he had received the file, did not require additional submissions and did not intend
to hold a hearing. The parties did not make additional submissions or request
permission to do so.
This Expert Determination was submitted to the Centre for scrutiny on July 29,
2013 and accordingly within the 45-day time limit in accordance with Article
21(a) of the Procedure.

8.

This proceeding is conducted subject to :Module 3 of the gTLD Applicant Guidebook (“Guidebook”)
Attachment to Module 3 of the gTLD Applicant Guidebook, New gTLD Dispute
Resolution Procedure (“Procedure”)
Rules for Expertise of the ICC (“Rules”)
3Appendix III to the ICC Expertise Rules, Schedule of expertise costs forproceedings under the new gTLD dispute resolution procedure (“Appendix III”)
ICC Practice Note on the Administration of Cases (“ICC Practice Note”)

9.

The language of all submissions and proceedings in this case is English.

10.

All communications by the Parties, the Expert and the Centre were submitted
electronically, in accordance with Article 6(a) of the Procedure.

11.

Abbreviations Used in this Expert Determination :“Appendix III”

Appendix III to the ICC Expertise Rules, Schedule ofexpertise costs for proceedings under the new gTLD
dispute resolution procedure“Applicant”

Charleston Road Registry, Inc.

“Center”

ICC International Centre for Expertise“gTLD”New Generic Top-Level Domain Name

“Guidebook”

Module 3 of the gTLD Applicant Guidebook“ICC Practice Note”

ICC Practice Note on the Administration of Cases“Objection”

Objection Form completed by Objector“Objection Annex”

Annex to Objection“Objector”

FairSearch.org“Procedure”

Attachment to Module 3 of the gTLD Applicant
Guidebook, New gTLD Dispute Resolution Procedure“Response”

Response Form completed by Applicant”Response Annex”

Annex to Response Form completed by Applicant“Rules”

Rules for Expertise of the ICC

4STANDARDS APPLICABLE TO COMMUNITY OBJECTIONS
12.

In order for a Community Objection to be successful, the Objector must satisfy
four conditions.

13.

Two of these conditions may be regarded as relating, in effect, to standing. Theyare:(a) that the community invoked by the Objector is a “clearly delineatedcommunity” and(b) that there is “a strong association” between the community invoked and thegTLD string for which application is made.

14.

According to the Guidebook, to find a “clearly delineated community”, a Panelmust first find that the Objector is an established institution. Factors relevant tothis particular determination are:(i)the level of global recognition of the institution,(ii)

the length of time the institution has been in existence, and(iii)

the presence of public historical evidence of the institution’s existence.

In any case, the institution must not have been established solely in conjunction
with the gTLD application process.
15.

Assuming a Panel finds an Objector to be an established institution, it must thenfind that the Objector, as an institution, has an ongoing relationship with a clearlydelineated community. According to the Guidebook, the existence of a clearlydelineated community may be evidenced by:(i)the level of public recognition of the group as a community at a local
and/or global level,(ii)

the level of formal boundaries around the community and the persons andentities that are considered to form the community,(iii)

the length of time the community has been in existence,(iv)

the global distribution of the community, and(v)

the number of people or entities that comprise the community.
5

According to the Guidebook, to determine whether an institution has an ongoing
relationship with a clearly defined community, the Panel may consider:(i)the presence of mechanisms for participation by members of thecommunity in the institution’s activities, membership and leadership,(ii)

an institutional purpose that is related to the benefit of the community, and(iii)

performance by the institution of regular activities that benefit thecommunity.

The Guidebook emphasizes that the various listings of factors are not exhaustive
and also that it is not necessary that each and every one of these factors isestablished. Rather, for each of the determinations, the Panel carries out abalancing of all the relevant factors.
16.

Once the “clearly delineated community” requirement (which I term condition (a))
is met, it still remains to determine whether there is “a strong association”
between this community and the gTLD string for which application is made (anassociation that I refer to as condition (b)). According to the Guidebook, thisassociation may be established by, among other things:

17.

(i)

statements in the application,(ii)

other public statements by the applicant, and(iii)

associations made by the public.

Assuming standing is established (through a showing that the community invokedby the Objector is “clearly delineated” and has “a strong association” with thegTLD in question), the Objector must then establish two further conditions (which
I refer to as conditions (c) and (d)), namely:(c) that there is “substantial Community opposition” to the application, and(d) that the application creates a 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 targeted.

18.

According to the Guidebook, in determining whether there is (c) “substantial
Community opposition” to the application, the Panel considers the following
factors, including:6

(i) the number of expressions of opposition relative to the size and composition of
the community,(ii) the representative nature of the entities expressing opposition,(iii) the level of recognized stature or weight among those expressing opposition,(iv) the distribution or diversity among those expressing opposition,(v) historical defense of the community in other contexts, and(vi) the costs incurred by the Objector in expressing opposition.

19.

If substantial opposition is found, the Panel must then determine whether (d) “theapplication 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”. According to the Guidebook, in making thisdetermination, the Panel may consider the following:(i) the nature and extent of damage to the reputation of the community that would
result from the applicant’s operation of the gTLD for which application is made,(ii) evidence that the applicant is not acting, or does not intend to act, in
accordance with the interests of the community or of users more widely,(iii) interference with the community’s core activities that would result from theapplicant’s operation of the gTLD for which application is made,(iv) dependence of the community on the domain name space (DNS) for its core
activities,(v) nature and extent of concrete or economic damage to the community thatwould result from the applicant’s operation of the gTLD for which application is
made, and(vi) the level of certainty that the alleged detriment will occur.

20.

With respect to conditions (a), (b), (c) and (d), described above, the Objector bears
the burden of proof.

SUMMARY OF THE OBJECTION
21.

In order to establish standing in this case, the Objector identifies itself as a wellestablished member-organization, consisting of some dozen multinational
companies, employing more than 100,000 persons world-wide. According to the7

Objector, it was formed as an institution, and its website was launched, in October
2010.

22.

The Objector claims that, since its formation, it has gained an important andfavorable reputation as a voice for the international internet search community,
interacting with a wide range of governmental and non-governmental entities in
the interest of transparency, fairness, consumer choice and innovation in Internet
search. It states that, as an institution, it provides mechanisms for participation in
activities, membership and leadership, and that its purposes relate to the benefit of
the internet search community. The Objector thus claims to represent not only its
own members, but also what it describes as “a global coalition of similarlyinterested organizations and companies” (Objection, para. 13).

23.

The Objector claims that there is substantial opposition to the Application inquestion from a significant portion of the community that has been identified. The
opposition in question is said to be driven by the community’s awareness of the
detriment to it that would flow from grant of the challenged Application.

24.

The Objector claims that the detriment in question would take the form of an
impairment of on-line competition resulting from the unfair competitive
advantage that the Applicant would gain vis-à-vis its competitors through its
identification with a generic term (Objection, paras. 22-23). As defined by the
Objector, generic terms are terms that are commonly used to identify, not aparticular player within an industry, but rather the industry as a whole and the
products and services that the industry offers (Objection, para. 14). According to
the Objector, the disputed gTLD “.fly” is precisely such a common generic term
for the community that the Objector represents (Objection, para. 16).

25.

The Objector asserts that the Applicant is currently the dominant provider ofalgorithmic and paid search services, accounting for 90% of all search queries in
Europe and 70% of all search queries in the United States, and that it is set as thedefault search engine for most mobile devices (Objection, para. 18). The searchindustry is also said to exhibit serious barriers to new entrants, due in part to thecost of maintaining a search engine capable of providing quality search results(Objection, para. 19). According to the Objector, under these circumstances, grant8

of the disputed gTLD would allow the Applicant to further strengthen its
dominance in general search and search advertising and, for purposes of thepresent Objection, its dominance in flight-booking search-related services inparticular.
26.

The Objector characterizes the grant to the Applicant of the gTLD it seeks toobtain as reserving to Google alone control over search-related gTLDs. This isdue to Google’s asserted intention “to exclude all others in the Industry fromusing common generic industry terms for its business” (Objection, para. 21). The
Objector bases this assertion on the Applicant’s statement in its initial Applicationof an intention “to operate the gTLD as a closed registry with Google as the soleregistrar and registrant” (Objection, para. 21). This result, it is argued, would
continue in perpetuity because the registry agreements permit unlimited automatic
renewal in ten-year terms. In the Objector’s terms, grant of the Application in thiscase would confer on the Applicant a “perpetual monopoly of generic industry
terms.” (Objection, paras. 2, 34).

27.

The Objector acknowledges that the Applicant now proposes to set up the gTLD“.fly” as an “open” rather than “closed” gTLD (Response, para. 28), and that its
Application might therefore appear to be “benign.” But it describes thisimpression as deceptive (Objection, paras. 24, 28) because the Applicant
nevertheless “would be well-positioned to foreclose vertical search competition”(Objection, para. 28). The Objector says this is due to the fact that the Applicant,by its own admission in its Application, would retain the right to determine whichbusinesses are “verified airlines, travel agencies, and travel re-sellers” (Objection,
para. 30) – albeit subject to a non-discrimination guarantee (i.e. a guarantee not tooffer preferential treatment to its own sites) and to an undertaking both to publish
verification criteria and to conduct audits only in the interest of preserving the
integrity of the gTLD. The Objector states that the Applicant will thus become the“gatekeeper” for the domain in question (Objection, para. 22) and predicts that its
brand would then become inextricably linked to the market category in which it
operates as dominant actor. In sum, the Objector urges that the Applicant not beallowed broad discretion to decide which enterprises are eligible to be part of the“.fly” domain and to, in effect, self-police (Objection, para. 31).
9

28.

In the view of the Objector, grant of the Application at issue would harm membersof the community by siphoning traffic away from the Applicant’s competitors andtoward the Applicant, while in the process harming consumers. In this regard, theObjector invokes general ICANN policy, describing it as ensuring that “gTLDs
operat[e] in a fair, orderly fashion across one global Internet, while promoting
innovation and competition.”

SUMMARY OF THE APPLICANT’S RESPONSE
29.

Responding to the Objection, the Applicant disputes both the Objector’s standing
to object and its position on the merits of the Objection.

30.

The Applicant contends that the Objector lacks standing, for multiple reasons,namely (Response, paras. 3-8):(a) that the Objector does not represent the travel community,(b) that the Objector is not “an established coalition,”(c) that the Objector is biased,(d) that the objecting institution has no consumers or consumer groups as
members, and(e) that the Objector’s claim to having a coalition of supporters is deceptive.

31.

As regards the merits, the Applicant maintains that the Objection fails to meet thestandards for a successful Community Objection. Thus, according to the Applicant(Response, paras. 9-11), the Objector has not established the following:(a) that the community whose interests are invoked is “clearly delineated,”(b) that the asserted community has received public recognition as a community,(c) that the asserted community has ascertainable formal boundaries,(d) that the asserted community has had a lengthy existence,(d) that the asserted community is global in distribution or size,

10(e) that there is a strong association between the asserted community and thestring applied for,(f) that there is substantial opposition within the asserted community,(g) that the opposing entities are numerous or representative, enjoy recognizedstatute or weight, reflect wide distribution or diversity, have a history ofdefending the interests of the asserted community, or have incurred costs inconveying their opposition,(h) that there is a likelihood of material detriment to the asserted community
resulting from the Applicant’s operation of the gTLD applied for,(i) that the asserted community would suffer reputational, concrete or economic
injury,(j) that the Applicant does not or will not act in the interest of the asserted
community or users,(k) that the Applicant would interfere with the asserted community’s core
activities,(l) that the asserted community’s activities depend on the domain name space(DNS), and(m) that the stated detrimental outcomes would certainly occur.

32.

In addition, the Applicant seeks to refute many of the Objector’s other specificassertions. Thus, the Applicant maintains that, contrary to the Objector’s
assertions:(a) generic terms are not easily identified (Response, paras. 13-16),(b) Google is not a monopolist in the search industry or in search advertising, butrather competes with a wide variety of enterprises (Response, paras. 17-21)(c) Google does not function as a gatekeeper to the Internet (Response, paras. 2223),(d) barriers to entry do not deter new firms from entering the search space(Response, paras. 24-25),(e) expanding gTLDs does not necessarily promote competition (Response, para.
26),(f) Google will not operate the TLD as a closed registry, but rather as an open one(Response, para. 28),11

(g) domains with restricted registries are common and serve a positive purpose(such as building trust within the Internet user community) (Response, para. 25),(h) Google’s competitors have options other than registering a second-leveldomain within the “.fly” TLD (Response, para. 28),(i) consumers may find any site they wish through search engines or by navigating
directly to a site (Response, para. 30), and(j) the Objector has not indicated the nature of economic damages that could be
attributed to Google, or offered an estimate of them (Response, para. 31).
FINDINGS OF THE EXPERT33.

Based on the Objection filed by the Objector and the Response filed by the
Applicant, together with the Annexes appended to both submissions, the Expert
makes the findings that follow.

Standing of the Objector
34.

Whether an Objector has standing to challenge the grant of a gTLD depends on aseries of determinations, notably: the nature of the Objector as institution; therelationship between the Objector as institution and the community whose
interests the Objector invokes; and the association between the community and thegTLD string for which application has been made.

The Objector as Institution
35.

In order to establish standing, the Objector must first demonstrate that it is anestablished institution. The factors relevant to this particular determination are thelevel of global recognition of the institution, the length of time the institution has
been in existence, and the presence of public historical evidence of theinstitution’s existence.

36.

As to the factors on which this determination is to be based, the record in this caseis mixed. On the one hand, the Objector provides indications to suggest that it hasreceived some global recognition. It at least asserts that it interacts with a wide
range of governmental and non-governmental entities in the interest oftransparency, fairness, consumer choice and innovation in Internet searches, and12that it is part of a “global coalition of similarly interested organizations andcompanies” (Objection, paras. 8, 13; Objections Annex B, O). The Applicant
denies these assertions (Response, para. 4), but does not effectively refute them.
Regarding the length of time that the institution has been in existence, the question
is a close one, since the Objector was only established in October 2010 (Response,para. 4). But while that is relatively recent, the pace of change in the Internet andits technology is such as to render a period of close to three years non-negligible.
On the other hand, the Objector has failed to adduce any public historical evidenceof its existence as an institution, this being among the factors stated to be relevantto this issue (Response, para. 9).

37.

The Applicant goes to some length to portray the Objector as biased. Technicallyspeaking this, even if true, is irrelevant to whether the Objector is an establishedinstitution. Still, a showing of bias could affect an Expert’s assessment of claims
addressed later in this Expert Determination, namely whether the substantial
opposition and the material detriment that need to be established have in fact been
established. That being said, the Expert is unpersuaded, on the basis of the
documents relied upon by the Applicant (Response Annexes 3-7), that the
Objector is biased. The Annexes cited appear to be largely polemical and, at best,
editorial, in nature and their objectivity cannot reliably be determined.

38.

In sum, while the Expert entertains doubt as to whether the Objector constitutes anestablished institution for present purposes, he considers that on balance a
sufficient showing to that effect has been made.

Relationship between Objector as Institution and a Clearly Delineated Community
39.

The Expert must then find that the Objector, as an institution, has an ongoing
relationship with a clearly delineated community. Before assessing theinstitution’s relationship with the community, the Expert first considers whether
the community in question can be characterized as “clearly delineated.”40.

In fact, the Objection does not do a very effective job of defining the affected
community. It refers to the community that it purports to represent as “the global
13internet search community” (Objection, para. 1).1 This is problematic because the
Objection in this case is not – and cannot be – directed to the full range of the
Applicant’s proposed Internet search activity, but only to the activity associatedwith the specific gTLD “.fly” (Response, paras. 2, 29). Consideration of the
Applicant’s other Applications, including notably its Application for the gTLD“.search”, but also its Application for the gTLP “.map”, lies beyond the scope of
this Expert Determination. To the extent that only the gTLD “.fly” is in issue, theaffected community, as pointed out by the Applicant (Response, para. 9), has notbeen defined with particularity.
41.

That being said, the Expert finds that the Objector must of necessity have been
contemplating a narrower community than the community of Internet searchers towhich it refers, and more particularly a community limited to search engines
relating to the travel industry.

42.

Looking then at this narrower community, it seems fair to conclude that it enjoys
public recognition on both a global and local scale, as the Objector asserts(Objection, para. 8).2 Moreover, this community has doubtless been in existence
for many years and the number of persons and entities comprising it is obviously
very large. It is true that the Objector has failed to state, much less show, that thecommunity is subject to any formal boundaries. However, it is not necessary to
any particular finding that each and every relevant factor point in its direction.
More troubling is the fact that the Expert found it necessary to narrow thedefinition of the community as presented by the Objector, so as to reach only
search engines relating to the travel industry. But, once having done that, theExpert concludes, based on the relevant factors, that there does exist an adequately
delineated community for standing purposes.

43.

It is not sufficient, however, that the Objector identifies a relevant community thatis clearly delineated. It is also necessary to establish that the Objector, as an1

According to the Objector, it “represents the interests of a group of businesses and organizations united topromote economic growth, innovation and choice across the Internet ecosystem by fostering and defending
competition in online and mobile search” (Objection, para. 3).
2
The Objector reports that it is an interlocutor “with a wide range of elected officials, various government
agencies, and international organisations around the world on a number of issues surrounding the preservationof transparency, fairness, consumer choice and innovation in Internet search.” Objection, para. 8, citing theEuropean Commission, the South Korean Fair Trade Commission, the French regulator CNIL, the Brazilian
Ministry of Justice, the Argentinian Competition Commission, as well as the Competition Commission of India.

14

institution, has an ongoing relationship with that community. Here again therecord is mixed. On the one hand, there would seem to be no doubt that the
Objector has an institutional purpose that is related to the benefit of thecommunity, as the Objector alleges (Objection, para. 6) and as the Applicant
cannot deny. The Objection also furnishes some evidence that the Objector
engages in regular activities of benefit to the community. 3 Where the Objection
falls short, however, is in regard to the presence of mechanisms for participation
by members of the community in the institution’s activities, membership andleadership. The Objection asserts, in rather conclusory fashion, that suchmechanisms exist (Objection, para. 12), but fails to identify them. Once again,
however, it is not necessary that each and every relevant factor support theconclusion reached. Balancing all the relevant factors, the Expert considers thatthe record, while mixed, tilts in favor of finding a meaningful ongoing relationshipbetween the Objector as institution and the community in question, as redefined.
Association between Community and gTLD String
44.

The next determination that needs to be made in order to establish standing iswhether there exists “a strong association” between the community in question
and the gTLD string for which application has been made. This determination issaid to depend largely on statements made, not by the Objector, but by the
Applicant itself. Even without consulting the Application as such, the Expert finds
in the Applicant’s response to the Objection recognition of a strong association
between the community the Objector purports to represent and the gTLD for
which the Applicant has applied. For example, the Applicant observes that
restricted TLDs are favorable to the interests of the community (Response, paras.
25-27).4

Conclusion on Standing
45.

Standing in a Community Objection requires that the Objector satisfy a series ofconditions having to do with the nature of the Objector as institution; therelationship between the Objector as institution and the community whose3

See note 2 supra.
The Applicant suggests that restrictions on access to TLDs “foster (rather than restrict) innovation because therestrictions are largely intended to create a sense of identity and community” (Response, para. 25) and because
they “build trust with the Internet user community” (Response, para. 27).
415

interests the Objector invokes; and the association between the community and thegTLD string for which application has been made.

46.

The Expert concludes that, despite the considerable weaknesses in the Objector’s
showing, and although the relevant factors do not by any means all point in thesame direction, each of the conditions required for standing is, on balance,
satisfied. The Objector accordingly has standing to pursue the present challenge.

Substantial Community Opposition47.

Objector’s standing having been established, it remains to determine whether
there is substantial Community opposition to the Application. This determination
turns on numerous factors including, notably, the number of expressions of
opposition relative to the size and composition of the community, therepresentative nature of the entities expressing opposition, the level of recognizedstature or weight among those expressing opposition, the distribution or diversity
among those expressing opposition, historical defense of the community in othercontexts, and the costs incurred by the Objector in expressing opposition.

48.

Among these factors, the Objector can be said to have demonstrated aconsiderable range of entities expressing opposition to the Application (seeObjection, paras. 8, 13, Objection Annex B).

49.

On the other hand, there is no significant mention in the Objection of the numberof expressions of opposition relative to the size and composition of thecommunity. Nor does the Objection document the representative nature of theentities expressing opposition, much less the extent of their recognized stature or
weight. Finally, the remaining factors cited in the Guidebook – notably, historicaldefense of the community in other contexts – do not receive serious attention.

50.

A showing of substantial opposition to an application is critical to a successful
Objection. Such a showing is absent here. Otherwise put, the Applicant is correctin asserting that, in these respects, the Objection “does not conform to the[Applicant Guidebook’s] community objection principles” (Response, para. 9).
16

51.

In sum, the Expert concludes that the Objector has not carried its burden of
establishing substantial community opposition to the Application.

Likelihood of Material Detriment
52.

Although the Objector’s failure to demonstrate substantial community opposition
requires the Objection to be overruled, the Expert – for the sake of completenessof the analysis – addresses the remaining question, namely whether the
Application creates a likelihood of material detriment to the rights or legitimate
interests of a significant portion of the community.

53.

There can be no doubt that substantially adverse effects on competition would
constitute the kind of material detriment contemplated in the context of Objections
to new gTLDs. The Expert is fortified in that view by the evidence that ICANN
strives to promote competition in the registry of domain names, thereby promoting
consumer choice, market differentiation and diversity (Objection Annexes F-H). It
remains to determine whether the Objector has carried its burden of proof onwhether grant of the new gTLD at issue in this case would have those effects.

54.

Taking into consideration the various factors cited by the Guidebook as relevant tothis issue, the Expert concludes that, even if substantial community opposition had
been shown, there has not been shown a likelihood of material detriment to therights or legitimate interests of a significant portion of the community. One factor
in favor of such a showing may be assumed, namely “dependence of thecommunity on the domain name space (DNS) for its core activities.” However, theother relevant factors are in the main lacking. I leave aside the factor of “damage
to the reputation of the community that would result from the Applicant’s
operation of the gTLD,” for the simple reason that there is nothing in the dispute
resolution process under which this proceeding is conducted to suggest that the
reputation of the community is at all relevant to this particular Objection. Butother factors much more pertinent to the Objection in this case have also not been
established. The Objector has provided surmise, but has not provided evidence, tothe effect that “the [A]pplicant is not acting, or does not intend to act, in
accordance with the interests of the community or of users more widely”
17

(Response, para. 11). The Objector has broadly asserted that – but not indicatedwith specificity how – the Applicant’s operation of the gTLD in issue would cause“interference with the community’s core activities.” While the Objector complains
about likely economic damage to the community – and opines about its nature andextent – it does not characterize the claimed damage in a fashion that could
possibly be described as “concrete” (Response, para. 11). Generalized
propositions about “barriers to entry” (Objection, paras. 19-20) do not suffice.
And the Objector’s assertions that grant of the Application will siphon traffic
away from the Applicant’s competitors are speculative and basicallyunsubstantiated. Beyond all of that, the Objector has not adduced impressive
evidence of a “[high] level of certainty that the alleged detriment will occur.”

55.

There is obviously considerable disagreement over Google’s effect on competitionin the industry. Both sides present documents that, viewed in isolation, would
suggest that, as the case may be, Google has or has not abused its dominantposition and has or has not had a seriously deleterious effect on competition (seeObjection, paras. 17-18, Response Annex 10). Similarly both sides cite toregulatory and judicial decisions in various jurisdictions that support their position
on Google’s status and conduct as a market actor (See Objection Annexes E, J-M,
citing Australian, Canadian and U.S. determinations, and Response Annexes 1214, citing Brazilian and U.S. determinations). They also present conflicting and
not always objective accounts on such questions as whether there are serious
barriers to entry in the industry (See Objection, para. 19, Response Annexes 1618), whether issuance of new gTLDs will significantly foster competition (SeeObjection, paras. 20, 22, Response Annexes 19-20), and whether restricted TLDs
have a positive or negative effect (Objection, paras. 26, 30, Response Annexes 2122).

56.

The Expert notes, in passing, that the Objector devotes several pages to the
proposition that international law does not allow exclusive ownership or control ofcommon generic terms (Objection, paras. 35-41). Strictly speaking, that
proposition – even if true – is not relevant. The Procedure states, in Article 20(a)that “[f]or each category of Objection identified in Article 2(e), the Panel shallapply the standards that have been defined by ICANN,” although Article 20(b)18goes on to allow the Panel, if it wishes, to refer to and rule on the basis of “anyrules or principles that it determines to be applicable.” The standards defined by
ICANN, as set forth in the Guidebook and as presented in some detail at the startof this Expert Determination, state independent criteria – namely, a “clearlydelineated community,” “a strong association” between the community invoked
and the gTLD string for which application is made, “substantial Community
opposition” to the application, and a likelihood of material detriment to the rights
or legitimate interests of a significant portion of the community to which thestring may be explicitly or implicitly targeted – and do not reference internationallaw. This is in contrast with the Limited Public Interest Objection, which requires
a panel to determine whether the gTLD applied for “is contrary to generalprinciples of international law for morality and public order.”57.

On the whole, the Applicant’s showing on these various points is more cogent andconvincing than the Objector’s. Even if that were not the case, the Objector bears
the burden of proof, and in the face of these profoundly contradictory studies andother documents, and the profoundly contradictory assertions they make, theExpert cannot conclude that the Objector has carried that burden.

58.

It is significant that, though the Applicant initially proposed a “closed” registry, it
amended its Application so that the registry would be an “open” one, and it has
stated unequivocally that it will make the gTLD available to all entities that
objectively represent verified airlines, travel agencies, and travel re-sellers, on a
non-discriminatory basis and in accordance with publicly known criteria(Response, para. 41). The Objector characterizes this set of assurances as
misleading (Objection, para. 24), but has not shown them to be. As for theundertakings themselves, the Expert cannot of course find with certainty that the
Applicant will in the future unfailingly operate the gTLD in all respects inconformity with them. But neither has the Objector offered convincing reasons tobelieve that the Applicant will not do so, though that is its burden. In short, theObjector reports, but does not substantially evidence, what it refers to as the
Applicant’s intention “to exclude all others in the Industry from using common
generic industry terms for its business” (Objection, para. 21).

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59.

The Objector thus has not established a likelihood of material detriment to therights or legitimate interests of a significant portion of the community.

CONCLUSION60.

The Objector has adequately established in all pertinent respects that it has
standing to challenge the grant to the Applicant of the gTLD at issue in this case.

61.

However, the Objector has not carried its burden of establishing the fact of
substantial community opposition to the Application. Even had the Objector
carried that burden, it did not carry the burden of showing that the Application
creates a likelihood of material detriment to the rights or legitimate interests of asignificant portion of the community.

DECISION
62.

Accordingly, in this proceeding the Applicant prevails and the Objection is
dismissed.

63.

Applicant is therefore entitled to refund of its advance payment of costs by theInternational Chamber of Commerce pursuant to Article 21(d) of the Procedure.

64.

Date

This constitutes the Expert’s final and binding findings.

3 September 2013______________________________
Professor George A. Bermann, Expert

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