THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/505/ICANN/122

ICANN AT-LARGE ADVISORY COMMITTEE
(USA)
vs/
GOOSE FEST, LLC(USA)(Consolidated with case No. EXP/504/ICANN/121
ICANN AT-LARGE ADVISORY COMMITTEE (ALAC) (USA) vs/
DOTHEALTH, LLC (USA))This document is a copy of the Expert Determination rendered in conformity with the New
gTLD Dispute Resolution Procedure as provided in Module 3 of the gTLD Applicant
Guidebook from ICANN and the ICC Rules for Expertise.

INTERNATIONAL CENTRE FOR EXPERTISE
INTERNATIONAL CHAMBER OF COMMERCE

EXP/505/ICANN/122

ICANN At-Large Advisory Committee (ALAC) (USA)vs/Goose Fest, LLC (USA)Consolidated with EXP/504/ICANN/121

Expert Determination

Professor Jan Paulsson

13 January 2014

TABLE OF CONTENTS

The Applicant …………………………………………………………………

3

The Objector …………………………………………………………………

3

Defined Terms ………………………………………………………………..

4

The Procedural Framework …………………………………………………

5

Overview ………………………………………………………………………

7

Grounds For The Objection …………………………………………………
a) Standing …………………………………………………………..
b) Community ……………………………………………………….
c) Substantial Opposition …………………………………………...
d) Targeting ………………………………………………………….
e) Detriment ………………………………………………………….

8
8
8
11
14
15

Response By The Applicant …………………………………………………
a) The Objector’s Standing…………………………………………..
b) A Clearly Delineated Community……………………………….
c) Substantial Opposition…………………………………………..
d) Targeting………………………………………………………….
e) Detriment…………………………………………………………

18
19
20
21
21
21

Assessment …………………………………………………………………….
a) “Communities” in general ……………………………………….
b) “Global Internet communities” …………………………………
c) .health in particular ……………………………………………...
d) Standing …………………………………………………………...

23
25
27
32
39

Determination …………………………………………………………………

40

Page 2

THE APPLICANT
Goose Fest, LLC (Delaware)
10500 NE 8th Av NE, Suite 350
Bellevue, WA 98004
USA
Represented byJohn M. Genga, Don C. Moody
The IP & technology Legal Group, P.C.
dba New gTLD Disputes
15260 Venture Blvd., Suite 1810
Sherman Oaks, CA 91403
USA+1-888-402-7706; +1-818-444-4582
john@newtlddisputes.com
don@newtlddisputes.com
THE OBJECTOR
At-Large Advisory Committee (ALAC)ICANN, 12025 Waterfront Dr, Ste 300
Los Angeles, 90094-2536
CA, USA
Represented by its Chair:
Olivier MJ Crépin-Leblond+1-310-578-8647
ALAC-Objections@atlarge-lists.icann.org

Page 3

DEFINED TERMS

gTLD

generic top-level domain.

Dispute Resolution
Procedure.

Attachment to Module 3: New gTLD Dispute Resolution
Procedure.

GAC

ICANN’s Government Advisory Committee.

Guidebook

The New gTLD Applicant Guidebook, approved by ICANN on
20 June 2011, updated on 11 January 2012 and 4 June 2012.

IFHIMA

International Federation of Health Information Management.

IFIP

International Federation of Information Processing.

IMIAInternational Medical Informatics Association.

NGO

non-governmental organization.

Objection

Objector’s Objection dated 13 March 2013.

Objection Procedures Module 3 of the Guidebook: New gTLD Dispute Resolution
Procedures for Governmental Advisory Committee Advice on
New gTLDs and formal third-party objections.

PolicyThe GNSO Report of 11 September 2007 entitled “Introductionof New Generic Top-Level Domains” as adopted by ICANN’s
Board of Directors on 26 June 2008.

Response

Applicant’s Response dated 6 June 2013.

Rules

Rules for Expertise of the International Chamber of Commerce.

TLD

Top-level domain, aka “string”.

Page 4

THE PROCEDURAL FRAMEWORK
1.

The present Determination assesses the validity of a Community Objection to

the New gTLD Application submitted by Goose Fest as a candidate to serve as
registry operator for the string .health. Such Objections are defined in subsection
3.2.1 of the Guidebook as based on a claim that:
There is substantial opposition to the gTLD application from a significant
portion of the community to which the gTLD string may be explicitly or
implicitly targeted.

Subsection 3.5.4 makes clear that a Community Objection will be successful only if
the Objector satisfies each of the four following tests :The community invoked by the objector is a clearly delineatedcommunity; and

Community opposition to the application is substantial; and

There is a strong association between the community invoked and theapplied-for gTLD string; andThe application creates a likelihood of material detriment to the rights
or legitimate interests of a significant portion of the community towhich the string may be explicitly or implicitly targeted. Each of thesetests is described in further detail below.

2.

In addition to the Objection Procedures and the Dispute Resolution Procedure,

the rules applicable to the Determination are the Rules of Expertise of the ICC,

Page 5

supplemented by the ICC Practice Note on the Administration of Cases under the
Attachment to Module 3 of the Guidebook.
3.

The place of the proceedings is Paris. They were conducted exclusively inEnglish. All communications among the Parties, the ICC, and myself have been
electronic. The file was consolidated with EXP/505/ICANN/121 by the Centre forTechnical Expertise on 7 May 2013.

4.

The Objection is dated 13 March 2013. The Response is dated 6 June 2013. I

was informed of my appointment by the ICC Centre for Expertise on 11 July 2013.
The file was transferred to me under cover of a letter from the ICC dated 2 August
2013, and I confirmed receipt thereof on 8 August 2003.

5.

This draft Determination was submitted for scrutiny to the Centre within the

45 day time limit set down in Article 21(a) and (b) of the Procedure.

Page 6OVERVIEW
6.

ICANN'S New gTLD Program was given its public launch in June 2011. The

Applicant states that the founders of its ultimate parent company, Donuts Inc.,
participated in the "crafting" of that Program from 2004 onwards, and established
Donuts Inc. specifically to acquire and operate new gTLDs. Describing itself as a"domain name registry bringing variety and choice to Internet naming", Donuts Inc.
has declared that it is backed by "substantial funding" and intends to operate each of
the gTLDs it has applied for. Donut Inc. has applied for 307 new gTLDs throughsubsidiary entities (like the Applicant) and paid ICANN's fee of $ 185,000 for eachapplication. (Google, with 101 applications, and Amazon, with 78, are the second andthird most prolific applicants.)
7.

ALAC raises the ground of Community Objection against Goose Fest, LLC.

Its Objection was submitted to the ICC Centre on 13 March 2013.
8.

The Community Objection is not the only possible obstacle to the success ofan application. It is important to understand, as a matter of proper regulatory
attribution of authority, that my assessment of the Community Objection is limited tothe specific criteria set out in Paragraph 1 above. This is not the place to determine,for example, conformity with "generally accepted legal norms of morality and publicorder that are recognised under principles of international law". I do not mean toassume or suggest that such an inquiry is called for (or not) with respect to thisApplication, but seek only to point out that those are criteria pertinent to anotherObjection, classified as the "Limited Public Interest Objection", which is not beforeme.

Page 7

GROUNDS FOR THE OBJECTION
Standing
9.

ALAC explains that its standing to object is justified by its status as theprimary organisational home for individual Internet users within ICANN. ALAC sits
at the top of a pyramid comprised of so-called At-Large Structures which, once
accredited by ICANN, become members of the appropriate regional At-Large
Organisations (RALOs). Each of the five RALOs is represented on ALAC by three
persons, two appointed by the RALO and one by ICANN's Nominating Committee.
ALAC proceeded pursuant to subsection 3.3.2 of the Guidebook to organise what is
known as the New gTLD Review Group to facilitate the process of developing andassessing potential objections. In this case, the Review Group received and consideredcomments from the International Medical Informatics Association (IMIA). The
Objections was finally approved by more than three RALOs before being approved by
vote by ALAC.

Community
10.

ALAC recognises that a "Community Objection" cannot be successful unlessthe objector (or the community it seeks to represent) can be regarded as "a clearlydelineated community". ALAC seeks to demonstrate the reality of such a community
by relying on the sympathetic attitude to its Objection said to be that of IMIA, which
it describes as follows:

Page 8

The International Medical Informatics Association (IMIA; www.imia.org) plays
a major global role in the application of information science and technology inthe fields of healthcare and research in medical, health and bio-informatics.
The IMIA’s basic goals and objectives are to:promote informatics in healthcare and research in healthcare andresearch in health, bio and medical informatics.



advance and nurture international cooperation.

to stimulate research, development and routine application.

move informatics from theory into practice in a full range of healthdelivery settings, from physician’s office to acute and long term care.

further the dissemination and exchange of knowledge, information andtechnology.



promote education and responsible behaviour.

represent the medical and health informatics field with the World HealthOrganization and other international professional and governmentalorganizations.

11.

ALAC explains that IMIA is a Swiss legal entity established in 1989 after its

initial creation in 1967 as a Special Interest Group of the International Federation ofInformation Processing (“IFIP”). It is a non-governmental organization with “closeties” to the World Health Organization (WHO) and to the International Federation of
Health Information Management (“IFHIMA”). ALAC describes the WHO as the

Page 9“directing and coordinating authority for health within the United Nations system”,
and explains that IFHIMA has since 1968 “supported national associations and healthrecord professionals to implement and improve health records and system.”
12.

ALAC also observes that IMIA comprises member societies from 57

countries. These are active “in areas ranging from Health or Medical Healthcare
Informatics to Telemedicine and Biomedical Engineering.”

IMIA also has six“corporate” and 44 “academic” institutions among its members “from around theworld”, as well as individual “corresponding members” from countries that do nothave an appropriate organization eligible to become an IMIA Member Society.
13.

ALAC describes IMIA as a “bridge organization” and states that its objectives

include:

moving theory into practice by linking academic and research
informaticians with care givers, consultants, vendors, and vendor-based
researchers;leading the international medical and health informatics communities
throughout the 21st century;

promoting the cross-fertilization of health informatics information andknowledge across professional and geographical boundaries; andserving as the catalyst for ubiquitous worldwide health information
infrastructures for patient care and health research.

Page 1014.

Given its status and activity, as described by ALAC, IMIA should in ALAC’sview be regarded as “the representative of the global community of medical andhealth informatics professionals from public, private and academic sectors”, and assuch “a clearly delineated community” in the sense of subsection 3.5.4 of the
Guidebook.

ALAC adds that by virtue of its “goals and objectives” the IMIA

“community” has developed a “strong” relationship with the global health community
in general, “understood as the individuals and entities who provide health-related
services and the beneficiaries of health care”. ALAC argues that information scienceand technology in the fields of healthcare and research in medical, health and bioinformatics ultimately benefits the entire global health community, and that theInternet in particular enables members of this community to communicate, toexchange products and services, and to inform and educate.

c) Substantial Opposition
15.

ALAC recognizes that a "Community Objection" must also demonstrate"substantial" opposition from a "significant" portion of the relevant community.
ALAC's demonstration in this respect proceeds primarily by reference to theinclusiveness of IMIA. ALAC notes that IMIA includes organizations representing
medical and health informatics professionals at a national level, corporations,academic institutions, and individuals. ALAC states that IMIA’s designation as an
NGO in “official relations” with WHO, and its partnerships with IFHIMA and IFIP
as well its status as “liaison organization” for the health informatics technicalcommittee of the International Organization for Standardization (ISO), are evidenceof the recognition of its stature and expertise.

Page 11

IMIA’s history and broad-based

membership, in ALAC’s words, “lend credence to it having a highly accepted andrecognized stature which commands the support and attention of the community it
represents”.
16.

ALAC goes on to argue as follows:
Acknowledging the extensiveness and diversity of IMIA’s membership, theobjection by IMIA, in speaking for all its members, would constitutesignificant expression of opposition relative to the community it represents,
which is taken to be the global network of professionals working in the scienceof processing data for storage and retrieval of health knowledge.

Suchrepresentation renders unnecessary for each of its members to submit an
objection to Goose Fest, LLC’s application for the .health gTLD. The fact thatit boasts and represents members operating in several sectors (i.e. public,
private, academic and individual persons) spread across numerous countries
makes it a legitimate representative in expressing significant opposition to thepresent application.
Therefore, IMIA in being regarded as the established network for global
community of medical and health informatics professionals, presents as aclearly significant portion, if not all, of the global medical and healthinformatics community.
17.

ALAC also invokes and relies upon the fact that other entities "have shared

our concerns over Goose Fest, LLC's application". In particular, it mentions “GAC
Early Warnings” from the Governments of France and Mali against Goose Fest’s
application for the .health gTLD, and notes that the Government of Mali’s Early

Page 12Warning was supported by Argentina, a GAC member. ALAC goes on to review thefollowing expressions of concern from NGOs:
Twenty-three comments were received and published on the Application
Comments Forum, thirteen of which were submitted by entities and/or
individuals affiliated with those entities, which/who mostly comprise health care
professionals, and which/who expressed either an objection or reservation to
Goose Fest, LLC’s application for the .health gTLD based on community
objection grounds. Concerns were raised by (1) Save the Children, (2) The
Cochcrane Collaboration, (3) Drugs for Neglected Diseases initiative (DNDi),(4) Medicus Mundi International Network, (5) Health Innovation in Practice, (6)International Society for Telemedicine and eHealth (ISfTeH), (7) Health On the
Net Foundation, (8) World Federation of Public Health Associations, (9) ISQua– International Society for Quality in Health Care, and (10) American Hospital
Association; while an objection was raised by (11) Association of American
Medical Colleges. The twelfth comment was an objection received from the (12)Association of Corporate Counsel, a global bar association that promotes thecommon professional and business interests of in-house counsel serving theprofessional and business interests of lawyers who practice in private sector
legal departments, and the thirteenth comment was an objection from (13) IMIA.

d) Targeting
18.

ALAC seeks to demonstrate that the .health string explicitly, or implicitly (byinference, based on public perception of the string), targets the community on behalfof which the objection is raised. It argues that the community “represented by IMIA”

Page 13

is comprised of international medical and health informatics communities who use
and provide information technology tools for the benefit of health sector, thus
“involving and impacting the global health community in general”.
19.

Goose Fest, in ALAC’s view, also seeks to have the same impact.

Itsapplication invokes the interest of a very broad and diverse group, including medical
practitioners, veterinarians, scientists and researchers, biologists, nutritionists,
dieticians, fitness experts, manufacturers, and others interested in promoting humanand animal wellness, global public health, the eradication of disease, and healthy
lifestyles.” ALAC also observes that Goose Fest deems .health to “represent a genericform of activity and expression” and invokes “no support from or association with any
entity that would represent health sector [sic].”
20.

Given the “sensitivity” of the .health gTLD, ALAC adds that it is “also guided

by the French Government’s argument that it would not be in the public interest to
entrust the responsibility for operating .health gTLD to an entity which is notaffiliated with, endorsed by, or otherwise formally connected to the global healthcommunity”.
21.

In conclusion, ALAC asserts that Goose Fest lacks “sufficient legitimate

interest in the .health gTLD”.

e) Detriment
22.

Finally, ALAC seeks to expose the "likelihood of material detriment to therights or legitimate interests of a significant portion of the community. It reasons thata community may invoke the following “types of harm” as constituting “material

Page 14

detriment”: (1) damage to the reputation of the community; (2) disregard of theinterest of the community, including in effective security protection for Internet uses;(3) interference with “core activities” of the community, including those that depend
upon the Domain Name System; and (4) concrete or economic damage to thecommunity.
23.

In particular, ALAC asserts that the present Application creates the likelihoodof material detriment to the legitimate interests of the global public health community
because health is a highly-regulated sector having safeguards that include, forexample, licensing, monitoring and enforcement, and the strings associated withregulated sectors are likely to invoke a level of implied consumer trust. Consumer
protection in health is particularly important within the online realm, as national orinternational rules cannot be effectively enforced to provide complete protection,
thereby creating new risks for consumers, industry and governments. The reputationof the community represented by the Objector is based on the professionalism of the
IMIA membership and its affiliation with other well-known international entities,
WHO included, which supports the consumers’ trust in the medical and healthinformatics products, services and research provided by the IMIA members.
24.

ALAC asserts that IMIA considers that a .health gTLD with “insufficientmeasures” to address these risks will “undermine consumer trust” and harm“legitimate enterprise, competition and the growth of the health industry”; acommercial entity without links to the global health community should not, in
ALAC’s view, be entrusted with this responsibility. ALAC pursues its argument asfollows:

Page 15

It is IMIA’s view that Goose Fest, LLC’s application for the .health gTLD does
not provide sufficient guarantees to safeguard the public interest. The applicant
intends to market the gTLD to consumers and other health stakeholders but has
validation processes which, according to IMIA, are insufficient. Without alegitimate link to the community and clarity on appropriate governance andpolicies, IMIA believes Goose Fest, LLC will perpetuate a status quo that has
already proved detrimental and costly to the global public health community.
IMIA considers that the .health gTLD should only be delegated to an entity
endorsed by the health community and only after a broad-based consultation of
the community has taken place, where the rights, rules and responsibilities forthe operation of the domain have been properly elaborated. IMIA proposes that
there be at least one trusted place on the Internet for health and that .healthshould be considered for this purpose as a global asset for health. In otherwords, .health should have some of special, protected status, given thesignificance of the .health string to the health community and to public welfare.
25.

ALAC insists that IMIA “goes further to suggest” that any delegated .healthgTLD “needs to be the subject of an externally imposed set of rules that safeguard
public interest,” and that these rules “ought to be established by relevant global
stakeholders of the health community”. It is IMIA’s position, so ALAC states, that
the Applicant “cannot be trusted to self-police the .health domain space.”
26.

ALAC concludes that if in fact the Applicant were successful but then failed toachieve adequate protection of the .health string against the promotion of illicit goods
and services and the dissemination of false, misleading, and/or inaccurate healthPage 16

information, “it is reasonably certain that public welfare will be harmed, health andlife could be endangered, and the reputation of the health industry damaged”. ALAC
adds that if the successful applicant of the .health gTLD places commercial interests
before public welfare interests, “which seems more than likely in the case of acommercial applicant”, those wanting to communicate important public service healthinformation to consumers through the Internet via the .health gTLD will “more thanlikely” be disfavored as against “income-generating subscribers which publicise
health related goods and services.
RESPONSE BY THE APPLICANT
27.

Goose Fest deems the Objection to be wrong as a matter of fundamental

principle. In “a world of only 22 gTLDs”, as it puts it, competition among registries
was inadequate, and consumers were deprived of its benefits. Donuts makes no secretof its comprehensive approach; its affiliates have applied for 307 gTLDs in order tooffer domains to open up forums for “subjects” which may otherwise not have them.
The Applicant describes its approach as follows:
Applicant would make the <.HEALTH> domain open to all potential registrants
for legitimate use of that common word’s various meanings. The registry would
operate neutrally, and with over two dozen anti-abuse mechanisms not requiredof existing gTLDs. Caregivers, patients, commentators, reviewers, personaltrainers, nutritionists, and others that may not be formally credentialed – yetnonetheless interested or even expert in various aspects of the field, with muchto contribute to public discourse – would have nondiscriminatory access to theTLD, with unprecedented protections.

Page 17

28.

The term “health” is already registered more than 267,000 times under “.com”

and other existing gTLDs, the Applicant observes, and goes on to contend that thepresent Objection is anti-competitive, seeking to close an entire segment of theInternet to uses of a term “which currently appears unfettered in second-level names
and does not describe clearly delineated community.”29.

The Applicant’s first argument is to the effect that the Objector lacks standing.

Alternatively, it addresses the merits by contesting each of the Objector’s contentions.

a) The Objector’s Standing
30.

Subsection 3.2.2.4 of the Guidebook requires that every objector must provethat it is an “established institution” with an “ongoing relationship with a clearlydelineated community” which the Applicant understands to mean “a locality, or agroup of individuals sharing specific characteristics or interests, or entities thatprovide a common service.”
31.

The Guidebook does not give ALAC any particular status that would dispense

it from having to meet the same requirements as all other Community Objections.
The Applicant challenges the IMIA’s association on the grounds that IMIA represents
only one particular segment of the “many diverse interests” that might use “.health”.
There is no “evidence of member support”, says the Applicant, and the Objection
relies upon ALAC rather than upon community segments other than IMIA. Although
the new gTLD program allows ALAC to make subsidized objections, the Applicant
submits that Community Objections are not properly to be brought by ALAC as anPage 18

“ICANN policy advisory body” which does not emerge from a “clearly delineatedcommunity”.
32.

The Applicant moreover insists that ALAC’s association with IMIA does not

solve the problem of standing, because IMIA, described as representing the “global
community of medical and health informatics professionals”, does not demonstrate
the required “strong association” with health – the Objection does not challenge anapplication for “.imia” or “.informatics”. Those terms suggest that IMIA represents a
different community than the Applicant here.

b)

A Clearly Delineated Community
33.

Goose Fest insists that “a clearly delineated community” must, as a

substantive criterion, be “more stringent” than when it is considered for the separate
purpose of standing. It observes that ICANN contemplated “community” to denote“specific organizations, cultures and other groups – e.g. Navaho, Amish – that candemonstrate harm to their interest by a domain relating to them”. By contrast, the“host of possible meanings” for “health” precludes the notion of “health” as a “truedelineated ‘community’.” The publishers of “Health” magazine and the “Substance
Abuse and Mental Services Administration”, for example, use health.com andhealth.org as their domains; this is legitimate – and ALAC does not speak for either of
them.
34.

Goose Fest cites the hypothetical case of pharmaceutical companies ascompared to that of insurance companies. The former might promote “name brandmedicines” while the latter might advocate “generic” alternatives.

Page 19

[I]f one side controlled .health, the other might find its views
suppressed. Just as in existing namespaces, neither Applicant nor the
public should suffer from restricted discourse on a subject of such
universal relevance.

c)

Substantial Opposition
35.

First of all, in Goose Fest’s view, the vagueness of the “community” asserted

by ALAC is such that it is impossible to attribute opposition from a “significant
portion” of it. IMIA might have referred to an .informatics community, but thatwould not encompass the 8.6 million doctors, 16.7 million nurses and midwives, 1.2
million dentists or 2.1 million pharmacists reflected in WHO data for 2012.

d)Targeting36.

Goose Fest disavows any intention of targeting any “community”, let alone thediscrete “bio-informatics” sector that dominates ALAC’s Objection. In a striking
phrase, Goose Fest states that it “targets the world, not any particular ‘community’.”
The proper purpose of the Community Objection is to prevent the misappropriation ofa string that “uniquely or near-uniquely identifies a well-established and closely
connected group of people or organizations.” Medical informatics, so writes Goose
Fest, “represents but one sliver of a subset of one possible connotation of the word
‘health’.” There is no evidence that the public “strongly associates” the .health stringwith “informatics”.

e)Detriment

Page 20

37.

Second-level domain names use “health” hundreds of thousands of times; this,agrees Goose Fest, reflects “the widespread embrace of the term for the free flow of
information.” ALAC concedes that the approval of the Application would perpetuate
the status quo; it cannot then claim that Goose Fest’s proposed string would create
any “greater” or “different” harm to the alleged “health community” than what occurs
under the existing regime of generic TLDs (notably .com).
38.

Goose Fest goes on to assert that it has the capability to deal with abuse “farbetter than most registry operators and New gTLD applicants.” Fulfilling ICANN’s
new requirements, it would thus positively ameliorate “the existing domain landscape,where targets of cybersquatting and phishing must affirmatively search for separate
needles in the haystack of the entire Internet.”
39.

Goose Fest observes that 95 “Initial Evaluation” tests have been successfully

passed with respect to applications by its affiliated entities.
40.

Finally, Goose Fest vehemently rejects ALAC’s “sweeping generalization” tothe effect that “for-profit” entities cannot be relied upon to protect “community
interests”: “Sheer speculation does not and cannot satisfy Objector’s burden toaffirmatively prove that harm is ‘likely’.”

Page 21

ASSESSMENT
43.

Goose Fest’s Application has made it clear, under point 19 of its Application,that it does not pertain to “a community-based TLD”. The paradigm of a community
on behalf of which the possibility of an Objection of the present kind was conceived
readily emerges from the perusal of the Guidebook. The paradigm would be a groupof people who have in common not only well-established and distinct origins, beliefs,
traditions, and practices, but also the self-perception that they constitute a groupwhose distinctive interests it is important to preserve and promote. Its members, who
might also occupy a distinct economic niche or constitute a social minority, arereadily perceived by outsiders as forming such a group, and their concerns or indeed
grievances are readily comprehensible, because they are expressed by voices
recognised as reliable reflections of the feelings and legitimate ambitions of thecommunity. The infinite and infinitely heterogeneous groups of persons keenlyinterested in "health" -- including for example the "group" of hundreds of millions ofpeople who suffer permanent afflictions of various intensity -- is self-evidently at the
antipode of this paradigm.

44.

It is rather ALAC that asserts, as it must (see Paragraph 1 above), theexistence of a relevant community on behalf of which it purports to act. (This is the“Community invoked by the Objector”, in the words of subsection 3.5.4 of the
Guidebook). As an Objector, ALAC accepts (as it must) that it has the burden ofproving each of the four requisite elements of a successful Community Objection (seeParagraph 1 above). ALAC fails, as shall be seen, at each of these hurdles. But firstit seems necessary, given the arguments raised in support of the Objection, to dispel

Page 22

the notion that the concerns of “communities” disqualify commercial corporations as
Registry operators.

45.

The Guidebook refers its readers, at page 1-2, to a “complete set of the

supporting documentation and more about the origins, history, and details of thepolicy developed background of New gTLDs Program”, to be found at
http://gnso.icann.org/issues/new-gtlds/. That site prominently displays a document
dated

22

October

2008

entitled

“New

gTLDs

Summary–

Principles,

Recommendations and Implementation Guidelines”.

46.

The Guidebook states in subsection 1.2.1, when defining “eligibility,” that

“established corporations, organizations, and institutions in good standing may apply
for new gTLDs”. The Guidebook furthermore asserts that “ICANN has designed the
New gTLD Program with multiple stakeholder mechanisms”. The Preamble is worth
quoting, since it gives substance to the notion of a public/private collaboration:
The program has its origins in carefully deliberated policy
development work by the ICANN community. In October 2007, theGeneric Names Supporting Organization (GNSO) – one of the groups
that coordinate global Internet policy at ICANN – formally completed
its policy development work on new gTLDs and approved a set of 19
policy recommendations.

Representatives from a wide variety of

stakeholder groups – governments, individuals, civil society, businessand intellectual property constituencies, and the technology community– were engaged in discussions for more than 18 months on suchquestions as the demand, benefits, and risk of new gTLDs, the selection

Page 23

criteria that should be applied, how gTLDs should be allocated, andthe contractual conditions that should be required for new gTLD
registries going forward. The culmination of this policy development
process was a decision by the ICANN Board of Directors to adopt thecommunity-developed policy in June 2008.

47.

The proposition that private corporate entities are free to apply without

requiring the approval of public officials is unmistakably confirmed in a number ofways, notably by the fact that Module 2 of the Guidebook (a) requires government
support only with respect to strings that wish to use geographic names, such as thoseof a country or a city, and (b) contains detailed references to “evaluation procedures”
which notably provide that corporations listed on the world’s 25 largest stock
exchanges will be deemed to have passed the “general business diligence and criminal
history screening.”

48.

Among the “Implementation Guidelines” set down in the document dated 22

October 2008 (see Paragraph 45 of the Implementation Guidelines), we find the plain
words:
community should be interpreted broadly.
It therefore seems proper to begin by considering how a “broad interpretation” of“community” should be understood.

a) “Communities” in general

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49.

The word “community” refers not to a place, but to an abstraction: theconvergence of a sense of involvement with common interests. True enough, acommunity may have a physical center, in the sense that its members care about theamenities, prosperity, security, and reputation of the place where they live. One may
also speak, however, of communities which are unattached to a locale, such as thosecomprised of defenders of animal rights, speakers of Esperanto, adherents of
Swedenborg, or fans of the Ajax football team. Communities of persons united bytheir interests in how they earn their living may be especially strong, whether they
form permanent organisations (like professional associations) or not (like the entire
population segment of retirees).

50.

Communities do not necessarily create institutions. They do not necessarily

function as a polity, in the sense of identifying officials formally authorized to act intheir name, represent their interests, or formulate their policies. They may exist
without structures of self-governance, such as membership committees which admit
or exclude individuals by reference to more or less well-articulated standards ofqualification or conduct.

51.

It follows that communities may include individuals who are more or lessconcerned with the welfare of the group as a whole; it may contain cynics as well as
idealists, speculators as well as altruists. Naturally it may include subgroups or evenindividuals whose opinions and preferences are sharply at odds with those of the
majority of the community. Unless the community has in some constitutional sense
defined itself as excluding undesirable individuals, or at least limited their capacity tomake claims to speak as members of the group, someone looking at a community

Page 25

from the outside, and armed only with this broad understanding of what a“community” may be, has no rules-based criteria for evaluating who does or does notbelong to the community.

b) “Global Internet communities”

52.

The determination I am now charged with effecting deals – so the Guidebook

states in subsection 1.1.2.3 – with “global Internet communities”. That expression has
not, however, been given further specific definition. One must therefore proceed on
the basis of (i) discerning what the relevant rules do not say about “communities” and(ii) being attentive to implied constraints derived from principles developed by
ICANN.
53.

ICANN defines itself as a

private-public partnership dedicated to: preserving theoperational security and stability of the Internet, promoting
competition, achieving broad representation of global Internet
communities, and developing policy appropriate to its mission
throughbottom-up,

consensus-based

processes.

This

necessarily involves the participation of many stakeholder
groups in a public discussion. (Guidebook, subsection 1.1.2.3.)

54.

The same subsection further explains that a
distinction should be made between application comments,
which may be relevant to ICANN’s task of determining whether
applications meet the established criteria, and formal

Page 26

objections that concern matters outside those evaluation
criteria. The formal objection process was created to allow afull and fair consideration of objections based on certain
limited grounds outside ICANN’s evaluation of applications on
their merits.

55.

Six “Principles” are defined in the 22 October 2008 document referred to in

Paragraph 45 above. They are worded as follows:A

New generic top-level domains (gTLDs) must be introduced in
an orderly, timely and predictable way.

B

Some

new

generic

top-leveldomainsshouldbeinternationalized domain names (IDNs) subject to the approval
if IDNs being available in the root.

C

The reasons for introducing new top-level domains include that
there is demand from potential applicants for new top-leveldomains in both ASCII and IDN formats. In addition to theintroduction of new top-level domain application process has
the potential to promote competition in the provision of registry
services, to add to consumer choice, market differentiation andgeographical and service-provider diversity.

D

A set of technical criteria must be used for assessing a newgTLD registry applicant to minimize the risk of harming thePage 27operational stability, security and global interoperability of theInternet.

E

A set of capability criteria for a new gTLD registry applicant
must be used to provide an assurance that an applicant has thecapability to meet its obligations under the terms of ICANN’s
registry agreement.

F

A set of operational criteria must be set out in contractual
conditions in the registry agreement to ensure compliance withICANN policies.

G

The string evaluation process must not infringe the applicant’s
freedom of expression rights that are protected underinternationally recognized principles of law.

56.

It is striking that this list of principles focuses primarily on technicalperformance – reliability, coherence, and capability to secure compliance with
relevant protocols imposed by ICANN’s registry agreement.

To the extent that

abstract or aspirational principles are defined, they are those of a free market(“competition”, “consumer choice”, “differentiation” and “diversity”) and freedom of
expression, rather than regulatory constraints arising from a protective (orauthoritarian) desire to filter “wrong” or “unsound” views, or otherwise restrict accessso as to reserve it to those who are vetted by some type of official bodies.

Page 28

57.

To put it another way, I see no reflection here of ALAC’s undisguised bias

against “commercial applicants” who “cannot be trusted to self-police the .healthdomain space and are “more than likely” to place “commercial interests before publicwelfare interests” (see Paragraphs 25-26 above). This type of policy was not the roadtaken, notwithstanding the lengthy and broad consultations described in The
Guidebook (see paragraph 46 and the quotation in paragraph 55 above). It is not forme to express preferences in this regard, but to apply the relevant rules as I find them.
The Objector’s animadversions against the Applicant miss the target; profit-seekers
may apply; the public interest is evidently intended to be protected by protocols
imposed by ICANN in a manner akin to that of regulators whose supervision
constrains the conduct of for-profit providers of public services generally.

58.

Twenty “Recommendations” are articulated in the 22 October 2008 document.

Broadly speaking, they concern matters relating to achieving realistic assurances thatstrings should be technically reliable, not infringe legal rights, and be run by entities
having adequate “financial and organizational operational capability” (Principle 8).

59.

Only three of these Recommendations merit mention for present purposes:

1

ICANN must implement a process that allows the introductionof new top-level domains.
The evaluation and selection procedure for new gTLD
registries

shouldrespect

theprinciples

transparency and non-discrimination.

Page 29offairness,

All applicants for a new gTLD registry should therefore be
evaluated against transparent and predictable criteria, fully
available to the applicants prior to the initiation of the process.
Normally, therefore, no subsequent additional selection criteria
should be used in the selection process.

6

Strings must not be contrary to generally accepted legal norms
relating to morality and public order that are recognized underinternational principles of law.

Examples of such principles of law include, but are not limited
to, the Universal Declaration of Human Rights (UDHR), theInternational Covenant on Civil and Political Rights (ICCPR),
the Convention on the Elimination of All Forms ofDiscrimination

AgainstWomen(CEDWA)andthe

International Convention on the Elimination of All Forms of
RacialDiscrimination,

intellectual

property

treaties

administered by the World Intellectual Property organization(WIPO) and the WTO Agreement on Trade-Related Aspects ofIntellectual Property (TRIPS).

20

An application will be rejected if an expert panel determinesthat there is substantial opposition to it from a significant
portion of the community to which the string may be explicitly
or implicitly targeted.

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60.

Recommendation 1 focuses on fairness, transparency, non-discrimination, andpredictability. If there had also been an intent to adopt such a fundamental principle
as the requirement that the right to apply – whether generally or with respect to certain
strings – be exclusively reserved for non-profit entities, it surely would have been
explicit.

61.

Recommendation 6 clearly concerns matters of political interest, but I have noreason to presume that the Applicant in this case is to be suspected of the intent toadminister .health in violation of fundamental norms of “morality and public order”.

62.

Recommendation 20, of course, echoes the criteria for the present

determination (see Paragraph 1 above).

c) .health in particular
63.

The Guidebook states in subsection 1.1.2.4 that:A GAC Early Warning may be issued for any reason.

64.

That sentence, however, refers to the following footnote at the bottom of page

1-8:
While definitive guidance has not been issued, the GAC has indicatedthat strings that could raise sensitivities include those that “purport torepresent or that embody a particular group of people or interests
based on historical, cultural, or social components of identity, such as
nationality, race or ethnicity, religion, belief, culture or particularsocial origin or group, political opinion, membership of a national

Page 31minority, disability, age, and/or a language or linguistic group (nonexhaustive)” and “those strings that refer to particular sectors, suchas those subject to national regulation (such as .bank, .pharmacy) or
those that describe or are targeted to a population or industry that isvulnerable to online fraud or abuse.”

65.

I have noted ALAC’s reference to the “sensitivity” of the .health string, as

well as its reference to the French Government’s Early Warning to the effect that
responsibility for operating that string must be given to an entity “affiliated with,endorsed by, or otherwise formally connected to the global health community.”

66.

ALAC has not explained what France may have meant by “the global healthcommunity”. Nor has ALAC indicated whether France’s Early Warning evolved into
the status of GAC Advice pursuant to subsection 1.1.2.7 of the Guidebook (in theabsence of which I see no reason to give it any weight in making this Determination).
For present purposes, I proceed on the basis that the relevant “community” is to beunderstood by reference to the criteria articulated, however diffusely, in the relevant
ICANN rules. As should already be clear, I have seen no warrant for considering thatthe .health “community” is limited to that of a) public health administrations or b)
private health practitioners or bodies operating under public license or accreditation,or even c) private health professionals generally.

67.

This does not mean that I do not acknowledge the variable intensity of public

interest that may attach to different strings. ALAC seems to be missing the markwhen it refers to the “sensitivity” that should attach to .health; a more careful reading

Page 32

of the footnote quoted in Paragraph 64 above should have led to the conclusion thatthe issue is not one of the very subjective “sensitivities” referred to in the first part of
the footnote, but to the “particular sectors” alluded to in the second part as being
subject either to national regulation or vulnerability to online fraud or abuse. No
matter; I readily accept that there is greater public interest, and greater risk of socially
undesirable outcomes, if .health were poorly administered than if proper protocols
were ignored with respect to strings that target communities defined by their interestin philately or sports memorabilia.

68.

The footnote in question, however, begins with the acknowledgment that“definitive guidance has not been issued” – indeed without an explicit indication thatsuch guidance was forthcoming or anticipated or possible (such as might have been
signalled by the insertion of a “yet” before the words “been issued’). I draw theconclusion not that the unquestionably important concerns alluded to in that footnote
have been ignored, but are left to be addressed in the protocols imposed on those who
administer those strings that are of an inherently higher intensity of public concern.

69.

The more significant problem with ALAC's presentation, however, is its

introduction of the notion of a "health" community in the first place. In so doing, it
misses the essential point that the "community whose interests" are putatively served
by a Community Objection is, as the Guidebook provides explicitly (see Paragraph 1
above), the community "invoked" by the Objector. That community is not necessarily
one conceived as coextensive with the inherent scope of the string, which may be far
broader. In other words, in the present case one needs to assess, in the first place, thePage 33

credentials of "medical informatics" as a "targeted” community rather than those of"health".

70.

True enough, it is natural to consider the ambit of the inherent reach of thestring itself. It would be natural to consider the population plausibly concerned by astring named ".astrophysics" when evaluating the contention that that string targets
the community of UFO enthusiasts. There is a connection -- but the world is full of
connections, and one must be guided by a sense of degree, proportionality, andrealism.

71.

The Objection itself reveals either that IMIA does not in fact represent the

global health community, or else that ALAC does not demonstrate an accuratecomprehension of it. ALAC states that "through its goals and objectives the IMIA
community [sic] has strong ties to the global health community in general, understoodas the individuals and entity who provide health-related services and the beneficiaries
of health care." It should be perfectly obvious that this conception misses importantsegments of human society devoted to "health" in a multitude of enabling capacities,
from entrepreneurs to agencies that test foods and medicines in the interest of publichealth. Moreover, "health" is not limited to the absence of disease and infirmity. And
to say that IMIA has "strong ties to the global health community in general" – which
is doubtless likely true with respect to the particular, and highly specialized, interface
between medical informatics and those who use such technologies – illustrates thenebulousness of the claim that IMIA represents a "delineated" community which is
perforce affected by a string that evokes the interests of a putative "global healthcommunity".

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72.

ALAC has not been able to explain how it (or IMIA) could be considered torepresent the vast concatenation of stakeholders Goose Fest intends to serve and at thesame time be said to constitute a "delineated community". I have not seen any
persuasive evidence to the effect that Goose Fest intends to "target" the "medical
informatics" community (or anything like it) in any sense of the word "target" whichis relevant to the rules that apply to this Determination.

73.

In sum, the Objection is based, in my judgment, on vague concerns andsuppositions which might be relevant to debates about the policy choices that should
be reflected in the New gTLD regime. Such debates, ICANN has explained, havealready taken place and have included wide and deep consultations. They haveresulted in extensive and highly technical requirements which are obviously not forme to evaluate, but which constitute the bulk of the Applicant's documentation andexplanations in support of its candidacy. The "concerns" articulated by the Objection
to some extent be co-extensive with the objectives pursued by ICANN's regulatory
scheme, and fall to be assessed in that context, but they simply do not belong in therealm of Community Objections.

74.

The Internet, as operated under ICANN’s system of policies, is conceived as

an open vehicle for communication, intended to promote free expression, to enable
innovation, to increase consumer choice, and to permit the dissemination of diverse
data, analyses, and opinions rather than the orthodoxy proclaimed by public officials
who assert the authority to decide what is “true” or “sound”.

Page 35

75.

For a string to succumb to a community-based Objection, its very name mustsurely bring to mind the identity of the Objector (or those sought to be protected by
the Objector) as its “target”. I cannot see how IMIA can be accepted as speaking for aclass of inevitable potential victims of Internet communications that concern the
diffuse aggregation of human beings who are vitally concerned by “health”. The very
notion of a community of “medical informatics” has not, moreover, been shown to me
as “clearly delineated”.

76.

We are certainly at a great remove from the case of a unitary ethnic orconfessional community reasonably apprehensive of its vulnerability to detractors andpersecutors, or other groups put at risk by reason of the particular circumstances orcharacteristics that define them.

77.

If the existence of a clearly delineated community is not shown, it is

impossible, for want of reference points, to see how any opposition could becharacterised as substantial.

78.

Moreover, considering that the first of the various “factors” listed by the

Guidebook (at p. 3-23) as relevant in evaluating the materiality of opposition, namely“Number of expressions of opposition relative to the composition of the community,”
I can only record that the Objection, even assuming its factual accuracy as far as it
goes, gives me no basis to conclude that ALAC has discharged its burden to provethat the opposition to the Application among the persons and entities who deal
extensively with medical informatics is substantial.

Page 36

79.

What ALAC (through IMIA) must show is that the Applicant here targets “theCommunity represented by the objector”. I have seen no convincing evidence that
“informatics” or “bioinformatics” is in fact is the Applicant’s target, save in the purely
contingent sense that the registry would (a) understand that persons involved thereinwould have an interest in some of the communications pertaining to “health”, and (b)certainly not exclude them.

80.

The matter of “detriment” is, in my view, the locus of the Objector’s principal

misconception.

ALAC presumes that for-profit entities cannot be trusted to beproperly heedful of the public interest. That is a political stance, and controversial.
Some will say that history shows that great social benefit has resulted from private
innovation and enterprise. Others will say that public or quasi-public regulators are as
likely to stifle as to stimulate progress. It is not my role here to express any views as
to the policy choices made, except to point out that ICANN insists on the deliberativeand inclusive manner in which they have been made (see Paragraph 46 above), andthat the rules upon which the present determination is based rely on the agreements
and protocols which ICANN impose on registry administrators, as well as on the way
they are enforced and monitored to ensure that public concerns are considered, andreflected in conduct.

d) Standing
81.

Logic suggests that the issue of standing be resolved prior to any considerationof the merits. Indeed, subsection 3.2.2 of the Guidebook provides that “Objectors
must satisfy standing requirements to have their objections considered.” There is,Page 37

however, considerable overlap between the requirement of standing (to be an“established institution associated with a clearly delineated community”) and the test
that the “community invoked” must be a “clearly delineated community” -- indeed somuch of one that it seems any Objector who succeeds in establishing standing has
perforce prevailed on the first out of the four merits tests under subsection 3.5.4 of the
Guidebook. That conclusion strikes me as sufficiently unusual to put into question
whether such was the intention of the drafters. For that reason I assumed pro tem that
the Applicant had standing, and assessed the merits, with the result that I reach theunhesitant conclusion that the Objection is unfounded. This confirms that standing
and merits are indeed inextricably linked; as there is no “clearly delineatedcommunity” of present relevance, the Objector, irrespective of its institutional quality,
in this case simply cannot be “associated with a clearly delineated community” since
there is no so defined community to be associated with.

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