THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/458/ICANN/75

TD AMERITRADE
(USA)
vs/
IG GROUP HOLDINGS PLC(UK)

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.

ICC Case Reference: EXP/458/ICANN/75
TD AMERITRADE (USA) / IG GROUP HOLDINGS PLC (UK)

EXPERT DETERMINATION

Expert Determination - ICC Case Reference: EXP/458/ICANN/75	
  TABLE OF CONTENTS
LIST OF ABBREVIATIONS ...................................................................................................2I.

PARTIES, REPRESENTATIVES AND EXPERTS......................................................3A.
THE OBJECTOR ......................................................................................................3
B.
THE APPLICANT ....................................................................................................3C.
THE OBJECTOR’S REPRESENTATIVE .....................................................................3
D.
THE APPLICANT’S REPRESENTATIVE....................................................................3
E.
THE EXPERT PANEL ..............................................................................................4II.

PROCEDURE.................................................................................................................4A.
OBJECTION GROUND .............................................................................................4B.
CONSOLIDATION OF OBJECTIONS .........................................................................5C.
DATES OF EXPERTS’ APPOINTMENT......................................................................6D.
APPLICABLE RULES ...............................................................................................6E.
LANGUAGE ............................................................................................................6F.
PLACE....................................................................................................................6G.
ELECTRONIC SUBMISSIONS ONLY .........................................................................6
H.
SUMMARY OF PROCEDURAL STEPS .......................................................................6I.
TIME FRAME ..........................................................................................................8

III.

FACTS ............................................................................................................................8A.
THE DISPUTE .........................................................................................................8B.
GENERAL BACKGROUND ......................................................................................9IV.

SUMMARY OF PARTIES’ POSITIONS....................................................................14A.
INTRODUCTION ...................................................................................................14
B.
AMERITRADE’S OBJECTION ................................................................................14C.
IG GROUP’S RESPONSE .......................................................................................17V.

FINDINGS ....................................................................................................................18
A.
STANDING ...........................................................................................................18B.
APPLICABLE TEST ...............................................................................................18C.
OBJECTOR’S REQUEST TO STAY THE PROCEEDINGS ...........................................20D.
QUICK LOOK PROCEDURE ..................................................................................21a) Framework for the Quick Look Assessment ...................................................21b) Quick Look Assessment by the Expert Panel..................................................22E.
SUBSTANTIVE ASSESSMENT ................................................................................23a) The Objector’s preliminary arguments ..........................................................23b) The .broker string would have an anti-consumer effect .................................24c) Competition will suffer if .broker is allowed to proceed ................................24
F.
CONCLUSION .......................................................................................................26

VI.

COSTS ..........................................................................................................................26

VII. DECISION ....................................................................................................................27	
  page 1	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75	  LIST OF ABBREVIATIONS
ASCII
CEDAW
EC
EEC
EUR
GAC
GNSO
gTLD
ICANN
ICC
ICCPR
IDN
LPIO
NCUC
NGPC
TLD
TRIPS
UDHR
WIPO
WTO

	
  

- American Standard Code for Information Interchange- Convention on the Elimination of All Forms of Discrimination Against Women- European Communities- European Economic Community- Euro- Governmental Advisory Committee- Generics Name Supporting Organisation- Generic Top Level Domain- Internet Corporation for Assigned Names and Numbers- International Chamber of Commerce- International Covenant on Civil and Political Rights- Internationalised Domain Names- Limited Public Interest Objection- Non-Commercial Users Constituency- New gTLD Program Committee- Top Level Domain- Trade-Related Aspects of Intellectual Property- Universal Declaration of Human Rights- World Intellectual Property Organisation- World Trade Organisation

page 2	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	
  
I.

PARTIES, REPRESENTATIVES AND EXPERTS

A.

THE OBJECTOR

1.

The Objector in this proceeding (the ‘Objector’ or ‘Ameritrade’) is:
TD Ameritrade
Ms. Helen I. Odom
600 W. Chicago Avenue, Suite 100
Chicago, IL 60654
USA
Tel. +1 773 244 7152
Email: Helen.Odom@tdameritrade.com

B.

THE APPLICANT

2.

The Applicant in this proceeding (the ‘Applicant’ or ‘IG Group’) is:
IG GROUP HOLDINGS PLC
Ms. Sharon Harris
Cannon Bridge House
25 Dowgate Hill
London EC4R 2YA
United Kingdom
Email: Sharon.harris@iggroup.com

C.

THE OBJECTOR’S REPRESENTATIVE

3.

The Objector’s representative in this proceeding is:
INFORMATION LAW GROUP
Ms. Heather Nolan
225 W. Washington, Floor 22
Chicago, IL 60606
USA
Email: hnolan@infolawgroup.com

D.

THE APPLICANT’S REPRESENTATIVE

4.

The Applicant is represented internally. Its contact person in this proceeding
is:

	
  

page 3	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	  Mr. Fabrizio Ferraro
IG GROUP HOLDINGS PLC
Cannon Bridge House
25 Dowgate Hill
London EC4R 2YA
United Kingdom
Email: fabrizio.ferraro@ig.com
E.

THE EXPERT PANEL

5.

The members of the Expert Panel in this proceeding are the following
persons:
Chair of the Expert Panel:Prof. Cees van Dam
87A Ridgmount Gardens
London WC1E 7AY
United Kingdom
Tel: +44 (0)20 73235939
Email: cees.vandam@kcl.ac.uk
Co-expert:
Prof. Jan Kleinheisterkamp
29 Stratford Road
London W8 6RA
United Kingdom
Tel: +44 (0)20 79557256
Email: j.kleinheisterkamp@lse.ac.uk
Co-expert:
Mr. Assen Zahariev Alexiev
Sabev and partners law firm
42 Petar Parchevich Str., floor 2
Sofia 1000
Bulgaria
Tel: +359 (0)2 980 0412
Email: alexiev@sabevandpartners.com

II.

PROCEDUREA.

OBJECTION GROUND

6.

The Objection in this proceeding (the ‘Objection’) is filed by the Objector
against the application ID 1-1332-82635 for the string .broker (the	  page 4	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75	  ‘Application’), made by the Applicant. The Objection ground invoked by the
Objector is a Limited Public Interest Objection (LPIO) under Section 3.2.1of the gTLD Applicant Guidebook, Version 2012-06-04 (the ‘Guidebook’).
As provided in Section 3.2.3 of the Guidebook, the Objection was filed with
the International Centre of Expertise of the International Chamber ofCommerce (the ‘Centre’) (Article 2 and 3 of the New gTLD Dispute
Resolution Procedure of the gTLD Applicant Guidebook).
B.

CONSOLIDATION OF OBJECTIONS

7.

In its Objection Ameritrade has requested for the sake of efficiency andconsistency to consolidate the objections filed against IG Group’s
Application with reference to Article 12 of the Attachment to Module 3 of
New gTLD Dispute Resolution Procedure (the ‘Procedure’) of the Internet
Corporation for Assigned Names and Numbers (ICANN), more particularly
Ameritrade’s Objection and that of Charles Schwab & Co., Inc.

8.

On 12 April 2013, the Centre informed the Parties that it was considering theeventual consolidation of the proceedings in the present matter with casereference EXP/458/ICANN/75 with the proceedings in case reference
EXP/469/ICANN/86, initiated on the basis of a Limited Public Interest
Objection against the same .broker string, filed with the Centre by Charles
Schwab & Co., Inc., and invited the Parties to file their comments in relation
to such eventual consolidation. No comments were made by the Parties on
this issue.

9.

On 22 April 2013, the Centre informed the Parties that it had decided toconsolidate the proceedings in the present case with the proceedings in casereference EXP/469/ICANN/86, and the new reference number of theconsolidated proceedings was case reference EXP/458/ICANN/75 (c.
EXP/469/ICANN/86).

10.

Following the non-payment by Charles Schwab & Co., Inc. of the amount of
the Costs fixed by the Centre as due by this Party within the seven day
deadline for payment fixed by the Centre in its letter to the Parties dated 16
July 2013, on 7 August 2013 the Centre decided to dismiss its Objection andto terminate the proceedings in case reference EXP/469/ICANN/86 on the
grounds of Article 14(d)(i) of the Procedure. Following the termination of
the proceeding in that case, the proceeding in the present case is no longer
consolidated with other proceedings, and the reference number of thisproceeding is case reference EXP/458/ICANN/75.

	  page 5	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	
  
C.

DATES OF EXPERTS’ APPOINTMENT

11.

By letter dated 28 June 2013, the Centre informed the Parties that pursuant
to Article 13 of the Procedure, Article 9(5)(d) of the Rules, and Article 3(3)of Appendix I to the Rules, the Chairman of the Standing Committee of theCentre had appointed the members of the Expert Panel in this matter on 21
June 2013. Prof. Van Dam was appointed as the Chair of the Expert Paneland Prof. Kleinheisterkamp and Mr. Alexiev were appointed as co-experts ofthe Expert Panel.

D.

APPLICABLE RULES

12.

The Expert Panel has considered this case on the basis of the following rules:
Rules for Expertise of the ICC (‘Rules’), supplemented by the ICC PracticeNote on the Administration of Cases (‘ICC Practice Note’), under the
Attachment to Module 3 of the gTLD Applicant Guidebook, New gTLD
Dispute Resolution Procedure (‘Procedure’) of the gTLD Applicant
Guidebook (‘Guidebook’).

E.

LANGUAGE

13.

All submissions and proceedings were in English (Article 5(a) of theProcedure). No other language was used for supporting evidence.

F.

PLACE

14.

The place of the proceedings was Paris, France (Article 4(d) of theProcedure).

G.

ELECTRONIC SUBMISSIONS ONLY

15.

All communications by the parties, the Expert Panel and the Centre were
submitted electronically (Article 6(a) of the Procedure).

H.

SUMMARY OF PROCEDURAL STEPS

16.

Ameritrade submitted its Objection to the Centre on 13 March 2013.

17.

On 3 April 2013, IG Group submitted to the Centre certain comments on the
Objection, and requested the Centre to review its administrative compliance.

	  page 6	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	
  
18.

On 4 April 2013, the Centre informed the Parties that it had conducted theadministrative review of the Objection (Article 9 of the Procedure), and that
the Objection was in compliance with Articles 5 – 8 of the Procedure andwith the Rules. Accordingly, the Objection was registered for processing(Article 9(b) of the Procedure).

19.

On 12 April 2013, ICANN published its Dispute Announcement pursuant to
Article 10(a) of the Procedure in relation to the present proceeding.

20.

On 22 April 2013, the Centre informed the Parties that it had decided toconsolidate the proceedings in the present case with the proceedings in casereference EXP/469/ICANN/86, and invited IG Group to file its Responses inthe two consolidated proceedings as separate Responses to each specificObjection within 30 days (Article 11(b) of the Procedure).

21.

On 22 May 2013, IG Group filed its Responses in the two consolidated
proceedings with the Centre.

22.

On 20 June 2013, Ameritrade submitted to the Centre a supplemental
submission. The Centre acknowledged the receipt of this supplemental
submission on June 26, 2013 and informed the parties that once appointed
the Expert Panel will contact them to discuss further proceedings and the
additional submissions. Following the transfer of the file to the Expert Panelnone of the Parties requested to file additional submissions.

23.

On 28 June 2013, the Centre informed the Parties that the Responses filed by
IG Group were in compliance with the Procedure and the Rules (Article 11of the Procedure). By the same letter, the Centre informed the Parties of theappointment of the Expert Panel and estimated total Costs for this matter andinvited the Parties to pay the advance of Costs within 10 days of the receiptof the letter in accordance with Article 14(b) of the Procedure.

24.

On 2 July 2013, Ameritrade submitted a request to the Centre for the stay ofthe proceedings in the case pending further direction from ICANN on theissue of whether, or under what conditions, closed registries will bepermitted for generic strings. Ameritrade referred to the current dialogue
between the ICANN Board New gTLD Program Committee (‘NGPC’) andthe ICANN’s Governmental Advisory Committee (‘GAC’) on the issue ofclosed generic strings.

25.

On 5 July 2013, Ameritrade repeated its request to the Centre to stay theproceedings.

26.

On 5 July 2013, the Centre invited IG Group to comment on the request forstay of the proceedings, and informed the Parties that the deadlines forpayment of the Costs were stayed until further notice.

	
  page 7	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	
  

27.

On 8 July 2013, IG Group submitted a communication to the Centre, bywhich it objected to the request for stay of the proceedings.

28.

With a letter dated 11 July 2013, Ameritrade requested the NGPC to instruct
the Centre to stay the proceedings until the NGPC has completed its
dialogue with the GAC on the issue of closed generic strings.

29.

On 16 July 2013, the Centre informed the Parties that it was not in a position
to stay the proceedings. With the same letter, the Centre confirmed theadvance payments by Ameritrade and IG Group of the estimated Costs fixedby the Centre. The Centre also invited Charles Schwab & Co., Inc. to makethe advance payment within a seven day time limit under Article 14(b) of theProcedure.

30.

Charles Schwab & Co., Inc. did not make the advance payment within theseven day time limit fixed by the Centre under Article 14(b) of theProcedure. Following the non-payment by Charles Schwab & Co., Inc. of
this amount, the Centre decided to dismiss the Objection and to terminate theproceedings in case reference EXP/469/ICANN/86.

31.

On 7 August 2013, the Centre confirmed the full constitution of the Expert
Panel and transferred the file to the Experts. No hearing was held.

I.

TIME FRAME

32.

The Expert Determination was submitted to the Centre for scrutiny within
the 45 day time-limit in accordance with Article 21(a) and (b) of theProcedure. No extension had to be granted by the Centre.

III.

FACTS

A.

THE DISPUTE33.

On 13 June 2012, IG Group submitted the Application to register the string‘broker,’ to operate as a restricted registry. In its Application, IG Group
states that it is a world-leading broker in financial derivatives, with a market
capital value of £1.7 billion as of October 2011 (Section 18(a)). IG Groupseeks to operate the .broker gTLD as a restricted registry and plans toprovide an authoritative Internet space where information, services andresources regarding online trading in financial derivatives via IG Group, as a
broker, will be closely controlled by IG Group (Section 18(a)).

	
  page 8	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	
  
34.

On 13 March 2013, Ameritrade filed an Objection against the Application by
IG Group mentioned above to register the string ‘broker’. The objection
ground was Limited Public Interest Objection.

B.

GENERAL BACKGROUND

35.

In 2005, ICANN’s policy development body, the Generics Name Supporting
Organisation (GNSO)1 started developing principles and recommendations
on the introduction of New Generic Top Level Domain names (gTLD). It its
Final Report in 2007, GNSO stated, among others, the following principle C:
The reasons for introducing new top-level domains include that there isdemand from potential applicants for new top-level domains in both
ASCII and IDN formats. In addition the introduction of new top-leveldomain application process has the potential to promote competition in
the provision of registry services, to add to consumer choice, market
differentiation and geographical and service-provider diversity.2

36.

In its Recommendation #6, GNSO postulated:
Strings must not be contrary to generally accepted legal norms relating to
morality and public order that are recognized under international
principles of law.
Examples of such principles of law include, but are not limited to, theUniversal Declaration of Human Rights (UDHR), the International
Covenant on Civil and Political Rights (ICCPR), the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW)
and the International Convention on the Elimination of All Forms of
Racial Discrimination, intellectual property treaties administered by theWorld Intellectual Property Organisation (WIPO) and the WTO
Agreement on Trade-Related Aspects of Intellectual Property (TRIPS).337.

This recommendation was adopted against the dissent of one of ICANN’s
constituencies, the Non-Commercial Users Constituency (NCUC), who
believed that the exclusion of strings by reference to ‘morality and publicorder’ would violate ICANN’s mission as these terms were too vague andimpossible to apply in a transnational setting owing to their domestic
connotations; moreover they would allow experts deciding on objections toregistration to prevent registration of strings, the refusal of which would

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
1

Article X.1 ICANN Bylaws: http://www.icann.org/en/about/governance/bylaws/bylaws-28feb06en.htm#X.
2
Principle C; http://gnso.icann.org/en/issues/new-gtlds/pdp-dec05-fr-parta08aug07.htm#_Toc43798015.
3
Ibid, Recommendation 6.

	
  page 9	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	  violate the USA constitutional prohibition of censoring and thus render
ICANN’s decision illegal and give rise to a significant risk of litigation.4
38.

The first paragraph of the GNSO recommendation was adopted in October
2008 as one of the four objections accepted against applications for new
gTLD registrations in ICANN’s first draft Guidebook, but leaving thequestion of standing requirements open for further study.5 The other threerecognized objections are: potential string confusion; violation of existing
legal rights; and opposition from a significant portion of the community towhich the gTLD string may be explicitly or implicitly targeted.

39.

In the 5th version of November 2010, ICANN Board New gTLD Program
Committee (NGPC) proposed to change the ‘morality and public orderobjection’ to a ‘Limited Public Interest Objection’, subject to consultation of
the community. It was decided not to limit the standing of objectors for thisground to filter out abusive or vexatious objections through a special ‘quick
look procedure’. This change was then permanently incorporated into the
Guidebook and constitutes since then the LPIO ground on which also theobjection in the present case is based:
Limited Public Interest Objection – The applied-for gTLD string iscontrary to generally accepted legal norms of morality and public orderthat are recognized under principles of international law.640.

In the public consultations held by ICANN, some contributors had raised
early on concerns about the New gTLD procedure potentially affecting
consumer concerns and competition.7 These concerns, however, do not seemto have caused any change in the policy or the procedure concerning New
gTLD until ICANN’s Governmental Advisory Committee (GAC) in April
2013 raised these issues in the context of the debate on ‘closed gTLD’

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
4

http://gnso.icann.org/en/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm#_Toc48210873.
Point 3.1.1 and 3.1.2.3 http://archive.icann.org/en/topics/new-gtlds/dispute-resolution-23oct08-en.pdf
6gTLD Applicant Guidebook Version 2012-06-04, Module 3, Point 3.2.1, see also Point 3.2.2.3 for the‘quick look’ procedure and Point 3.5.3 for the explanations on the LPIO ground.
7See, e.g., in ICANN’s ‘Analysis of Public Comment of the New gTLD Application Guidebook Version 2’ (31 Nay 2009) p. 24; http://archive.icann.org/en/topics/new-gtlds/agv2-analysis-publiccomments-31may09-en.pdf:
5Competition concerns. The gTLD seems like a step towards creating a monopolistic situation
where the registrars will effectively eliminate any market opportunity for domain registrants.
Opening the door to this type of exploitation by a few corporations seems like a step in the wrong
direction. Pat (12 April 2009).
Consumer protection. It is important that appropriate mechanisms are in place through all stagesof the application process to ensure the protection of consumer interests. J.A. Andersen, Director
General, Ministry of Science Technology and Innovation, National IT and Telecom Agency,
Denmark (2 Mar. 2009).

	  page 10	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75	  strings and provided its Safeguard Advise on New gTLD, in which it advised
the ICANN Board, inter alia:
1. Restricted Access
As an exception to the general rule that the gTLD domain name space isoperated in an open manner registration may be restricted, in particularfor strings mentioned under category 1 above. In these cases, theregistration restrictions should be appropriate for the types of risks
associated with the TLD. The registry operator should administer accessin these kinds of registries in a transparent way that does not give an
undue preference to any registrars or registrants, including itself, andshall not subject registrars or registrants to an undue disadvantage.
2. Exclusive Access
For strings representing generic terms, exclusive registry access should
serve a public interest goal. In the current round, the GAC has identified
the following non-exhaustive list of strings that it considers to be genericterms, where the applicant is currently proposing to provide exclusive
registry access[: among 60 other strings]… .broker…841.

This GAC safeguard advice came in the aftermath of a number of GAC
Early Warnings,9 which raised consumer and competition issues regarding
the exclusive use of common generic strings that relate to a broader andpartially also regulated market sectors.10 One of these Early Warnings was
issued by the Australian Government regarding the Applicant’s Application
for the restrictive use of the string ‘.broker’.11

42.

In reaction to the GAC safeguard advice of 11 April 2013, the ICANN
Board NGPC, after a public consultation,12 adopted a resolution on 25 June2013 to implement the GAC advice as follows:
Resolved (2013.06.25.NG04), the NGPC adopts the "Proposed PIC Spec
Implementation of GAC Category 2 Safeguards" (20 June 2013), attached as
Annex I to this Resolution, to accept and implement the GAC's Category 2

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
8

GAC Communiqué – Beijing 11 April 2013, http://www.icann.org/en/news/correspondence/gac-toboard-11apr13-en.pdf, Annex I – ‘Category 2: Restricted Registration Policy’; see also VI.1.b.
9
See Guidebook 1.1.2.4 and 1.1.2.7.
10
Already on 17 October 2012, GAC had explained in its Toronto Communiqué: ‘In the interest of
sharing information with the Community, and in advance of individual GAC members issuing any
early warnings on specific applications, the GAC notes that individual GAC members are considering
a range of specific issues including: Consumer protection; Strings that are linked to regulated market
sectors, such as the financial, health and charity sectors; Competition issues; …’;
https://gacweb.icann.org/download/attachments/27132070/FINAL_Toronto_Communique_20121017.
pdf.
11
https://gacweb.icann.org/download/attachments/27131927/Broker-AU-82635.pdf.
12
http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en.htm.

	  page 11	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	  Safeguard Advice for applicants not seeking to impose exclusive registryaccess.
Resolved (2013.06.25.NG05), the NGPC directs staff to make appropriatechanges to the final draft of the New gTLD Registry Agreement, as presented
in Annex I attached to this Resolution, to implement the GAC's Category 2
Safeguard Advice for applicants not seeking to impose exclusive registryaccess.
Resolved (2013.06.25.NG06), the NGPC directs staff to defer moving
forward with the contracting process for applicants seeking to impose
exclusive registry access for "generic strings" to a single person or entity
and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of theRegistry Agreement), pending a dialogue with the GAC.13
43.

On the basis of these resolutions, the final draft of the New gTLD Registry
Agreement now includes the following specification as set out in Annex I to
the NGPC Resolutions of 25 June 2013:
Specification 11 Public Interest Commitments (for Category 2 Safeguard Advice)
1. Registry Operator will operate the TLD in a transparent mannerconsistent with general principles of openness and non-discrimination by
establishing, publishing and adhering to clear registration policies.
2. Registry Operator of a “Generic String” TLD may not impose
eligibility criteria for registering names in the TLD that limit
registrations exclusively to a single person or entity and/or that person’sor entity’s “Affiliates” (as defined in Section 2.9(c) of the Registry
Agreement). “Generic String” means a string consisting of a word orterm that denominates or describes a general class of goods, services,groups, organizations or things, as opposed to distinguishing a specificbrand of goods, services, groups, organizations or things from those ofothers.14

44.

It is worth noting that since the submission of the final draft of this Expert
Determination for scrutiny by the ICC Centre for Expertise, further
developments have also taken place, which confirm the Panel's
understanding and references to which shall be included in this Expert
Determination for the sake of completeness.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
13

Resolutions 2013.06.25.NG04 – 2013.06.25.NG06 (emphasis added);
http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-25jun13-en.htm#2.c.
14
http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-annex-i-agenda-2c-25jun13en.pdf.

	  page 12	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	
  
45.

On 28 September 2013, the NGPC, after considering the applicant
responses15 to the GAC Beijing advice, adopted the following resolution:16
Resolved (2013.09.28.NG02), the NGPC adopts the "Remaining Items
from Beijing and Durban GAC Advice: Updates and Actions" (28September 2013), attached as Annex 1 [PDF, 94 KB] to thisResolution, in response to remaining items of GAC advice in the
Beijing Communiqué and the Durban Communiqué as presented in thescorecard.
Point 10 of Annex 117 to this resolution includes the following decision:
The NGPC further directs staff to prepare an analysis and proposal
for how to implement the Category 2 Safeguard Advice for applicants
who do intend to impose exclusive registry access for generic strings.

46.

On 16 November 2013 the NGPC again discussed the open items from the
GAC Beijing and Durban Communiqués, including the Category 2
Safeguard Advice, and the further actions to be taken by its staff in thisregard:18
The Committee also received an update on the progress to date toaddress the Category 2 Safeguard Advice in the GAC's Beijing
Communiqué. Staff noted that it would contact the applicants who
confirmed their intent to operate as an exclusive access registry. Staff
will ask those applicants to provide an explanation for how their
exclusive access registry serves a public interest goal. The Committee
recommended imposing a deadline for receiving responses from theapplicants so that the Committee could provide the responses to the
GAC for possible consideration before the Singapore meeting.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
15

http://newgtlds.icann.org/en/applicants/gac-advice/beijing4616	
  http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-28sep13-en.htm	
  17	
  http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-annex-1-28sep13-en.pdf	
  18	
  See Section 2(a) of the Preliminary Report for this meeting, available at

http://www.icann.org/en/groups/board/documents/prelim-report-new-gtld-16nov13-en.htm	
  

	
  

page 13	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	
  

IV.

SUMMARY OF PARTIES’ POSITIONSA.

INTRODUCTION47.

On 13 March 2013, Ameritrade filed a Limited Public Interest Objection
against IG Group’s Application, arguing that the applied-for gTLD string iscontrary to general principles of international law of public order as reflectedin the relevant international and domestic instruments of law and therefore
falls within one of the categories identified in Section 3.5.3 of the
Guidebook as a ground for a limited rights objection. It argues that allowing
registration of the .broker gTLD string would be contrary to principles ofinternational law because it would cause harm to consumer interest and tocompetition.

B.

AMERITRADE’S OBJECTION

48.

Ameritrade’s Objection consists of preliminary remarks and two mainconcerns. In its preliminary remarks (pages 6-7 of the Objection),
Ameritrade argues that ‘broker’ is a common, generic term that is also
specifically defined by law and closely related to the highly regulated
financial industry. It is defined in the USA in the Securities and ExchangeAct, in the European Union in Directive 2006/73/EC of 10 August 2006, andin the United Kingdom the Financial Service Authority imposes additional
regulations and requirements on brokers.

49.

Ameritrade also points out that the significant opposition that has been
expressed regarding applied-for generic domains in various industries
reflects the contention surrounding closed generic gTLDs and that ICANN
has specifically sought public comments on the issue. It also refers to the
Early Warning issued on 20 November 2012 by the Governmental Advisory
Committee through the Department of Broadband, Communications and theDigital Economy, on behalf of the Australian Government. The Early
Warning held that the IG Group ‘is proposing to exclude any other entities,
including potential competitors, from using the [.broker] TLD,’ which is ‘acommon generic term relating to a market sector.’ The Australian
government had communicated that restricting ‘common generic strings forthe exclusive use of a single entity could have unintended consequences,including a negative effect on competition.’ In addition, public comments
raising public interest concerns have also been filed in response to the.broker Application.

50.

Ameritrade’s main concerns are twofold. First, it argues that registration of.broker would have an anti-consumer effect (pages 7-8 of the Objection).
Exclusive control of the .broker domain by a single broker entity in the	
  page 14	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	  global financial industry would harm the public by having a negative effecton consumers and on competition. In this context, Ameritrade refers to what
it calls significant opposition that has been expressed regarding applied-for
generic domains in various industries which according to it reflects thecontention surrounding closed generic gTLDs. Ameritrade also argues that
IG Group’s motivation for the Application is to restrict consumers’ optionsin the brokerage services space and that it is to foster and further strengthen
its reputation as a pioneer broker offering secure online trading in financial
derivatives.
51.

In this respect, Ameritrade also argues that the public interest is particularly
at risk in the case of generic terms that are regulated by statute or other legal
authority, such as by the USA and the European Union. It considers thatvarious jurisdictions regulate and define the term ‘broker’, particularly in thefinancial industry, including who may use the term ‘broker’ and offer
financial and investment services using the term. These laws do not place
any limits on the number of brokers who may offer their services to theconsuming public, let alone name IG Group as an exclusive broker.

52.

Ameritrade furthermore argues that by confining the availability of
information, services, and other resources under the .broker gTLD to theregistry provided by IG Group, the consuming public loses the benefits to begained from diverse perspectives. The concept of brokerage services is not
exclusive to the Applicant, but the association of this concept through theuse of the gTLD is likely to create the impression in the minds of theconsumers that the IG Group’s perspective, resources, materials, andfeatures are synonymous with ‘broker’ and ‘brokerage services’, and would
also suggest to the public that IG Group has some sort of unique, preferred,or even government-sponsored role with respect to brokerage services. It
would also be misleading because the term ‘broker’ is defined and regulatedby the USA government, the European Union, and other jurisdictions.
According to Ameritrade it is a disservice to consumers to suggest that one
service provider, among many, defines and controls a genus of specialized
financial services contemplated by the government. The Objector considers
the potential impact of a new gTLD string to be much greater than the risks
that may arise in the context of individual domain names such as .com,
because a new gTLD requires ICANN approval and substantial resources,
both for the application and for the operation of the gTLD. Thus, the public
interest concerns must weigh more heavily than they do for individual
domain names.

53.

Ameritrade’s second argument is that competition will suffer if .broker isallowed to proceed (pages 8-9 of the Objection). It considers that an
exclusive right on IG Group’s part to operate a domain registry using thisgeneric term would give it an unfair competitive advantage, because the	
  page 15	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	  exclusive right to .broker would be tantamount to granting IG Group amonopoly over a term that belongs to the general public.
54.

In this respect Ameritrade refers to international law and the laws of various
jurisdictions resisting the granting of exclusive rights in generic terms. Moreparticularly it refers to the Madrid Agreement and Protocol, Article
6quinquies Paris Convention, Article 3 Council Regulation (EEC) No.
2081/92, and USA case law. Allowing IG Group to control a gTLD
comprised of ‘broker’ would be the equivalent of granting trademark
protection when there should be none. Allowing such a term’s exclusive use
by any one entity – whether as a trademark or as a gTLD – would infringe
upon an important collective and society-wide ownership. The gTLD would
grant IG Group, a single business, the exclusive use of a generic word andrender that exclusivity enforceable on the Internet while unenforceable
anywhere else. It would also allow the IG Group to circumvent trademark
law by arguing that the string has acquired secondary meaning warranting
trademark protection and further harming competitors and consumers.

55.

IG Group’s operation of the .broker gTLD would effectively give it amonopoly over the generic term ‘broker’ in a specified online context,
contrary to international law. Granting such a monopoly also prevents othersin the same industry from accessing or using the domain. Accordingly, IG
Group would be positioned to gain an unfair advantage in direct navigation,
online search, and search optimization. Permitting use of the generic stringwith exclusive rights as a closed string in connection with the very products
being provided would cause the individual consumer to suffer from loss ofchoice and from biased content delivery. Principles of international law do
not permit such an anti-competitive operation. According to the Objector,
the same objections apply if IG Group would operate .broker as an open
registry: it could unilaterally impose the terms of access to and use of thedomain, and it would be able to set unfair or abusive pricing terms for its
competitors. Under widely-accepted international principles of competition
and the international and domestic laws identified above (among others), IG
Group should not be allowed to have essentially discretionary ability tocontrol its competitors.

56.

Finally, Ameritrade refers to ICANN’s Core Value number 6, providing that
ICANN is to foster the introduction and promotion of ‘competition in theregistration of domain names where practicable and beneficial in the public
interest.’ According to Ameritrade, restricting the use of generic terms, suchas ‘broker’, for the gain of any one business at the cost of competition, andagainst the interests of consumers is harmful to the public interest.

57.

Ameritrade concludes by requesting that the Expert Panel determines that IG
Group’s Application is contrary to general principles of international law for
public order and, therefore, should be rejected entirely.

	  page 16	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	
  

C.

IG GROUP’S RESPONSE

58.

IG Group first sets out its view on the historic development of the Limited
Public Interest Objection, the test of which can now be found in Section
3.5.3 of the Guidebook. From this, the IG Group draws two conclusions.

59.

First, the string itself is the target of the enquiry, not any consideration
regarding the Applicant, its business plan or how it proposes to operate thestring. The string itself may be objected to if it breaches the generally
accepted norms against morality and public order. This ground was created
to prevent strings that were inherently immoral, obscene or were incitements
to breach public order. According to IG Group, nothing in the context of the
Application turns the common commercial term ‘broker’ into a string likely
to breach international norms of morality or public order.

60.

Second, IG Group argues that a Limited Public Interest Objection must be
based on specific principles of international law and relevant instruments. It
concludes that the Objector fails to plead any generally understood norm ofinternational law dealing with, or relevant to morality and public order.
Where the Objector argues that allowing this string is in breach of trademark
laws, the Applicant maintains that this is dealt with by a separate ‘Legal
Rights Objection’, which has its own standing requirements, standards,
forum and rules. According to IG Group the Objector has no standing tobring a Legal Rights Objection as it has no protectable rights in the term
‘broker’ which is inherently generic and unable to be protected under
trademark laws. IG Group also argues that the Objector does not describe theinternational principle or points to relevant instruments of international law
with respect to ‘anti-competitive effects’.

61.

IG Group also argues that ICANN’s mission is not limited to providing moredomain name registration opportunities at the second level but also toprovide new and innovative opportunities which a new gTLD registry does.
A .broker TLD will create additional services and opportunities for thepurchasing public. Existing services are unaffected by the approval of the
Application for .broker and it adds to consumer choice.

62.

IG Group considers the ICANN debate over closed generics and GAC Early
Warnings to be irrelevant in relation to the Objection. According to IG
Group a closed generic registry has always been permissible under the
Guidebook and the Early Warning is of no procedural effect, neither did it
raise an issue relevant to a morality and public order objection.

63.

IG Group also argues that the Objector is wrong in arguing that all brokers
should have access to the .broker TLD by stating that not all brokers have	
  page 17	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	
  access to broker.com, .net, .org, or any other TLD. In exactly the same way
the ICANN programme allowed a first-come first-served applicant theopportunity to choose a generic name that suited it. Brokers missing out havelost out in a competition, which, according to IG Group, is a very different
result than .broker being ‘anti-competitive’.
64.

The Applicant also refutes the Objectors argument that consumers will makewrong assumptions when seeing a .broker domain name as there is no
standard assumption a consumer could make and the Applicant will educate
the public as to what the new TLD means. Neither does the Applicant
consider that the risks of confusion are different between broker.com and.broker.

65.

IG Group also refutes that it will obtain trademark rights by its registration
as a gTLD because the term broker has a generic character, particularly
when being used in the context of broking services for which it isdescriptive. It also states that Objector’s suggestion that a gTLD registration
could confer a monopoly on ‘broker’ is fanciful.

66.

The Applicant concludes that none of the issues raised by the Objector are
relevant to such as objection, consisting of complaints on other grounds,
with no evidence to support them, being merely the allegations of acompetitor and that the Objection should be dismissed.

V.

FINDINGSA.

STANDING

67.

Section 3.2.2 of the Guidebook does not provide limitations as to who may
file a Limited Public Interest Objection. On the contrary, Section 3.2.2.3
holds that ‘anyone’ may file a Limited Public Interest Objection. Therefore,
the Expert Panel concludes that the Objector has standing.

B.

APPLICABLE TEST

68.

Section 3.5.3 of the Guidebook holds that an Expert Panel hearing a Limited
Public Interest Objection will consider whether the applied-for gTLD stringis contrary to general principles of international law for morality and publicorder. The section provides a non-exhaustive list of instruments(international conventions, declarations and covenants) containing suchgeneral principles. It also holds that national laws not based on principles ofinternational law are not a valid ground for a Limited Public Interest
Objection.

	
  page 18	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	
  
69.

The section notes that under the mentioned general principles, everyone has
the right to freedom of expression, but that the exercise of this right carries
with it special duties and responsibilities and that, accordingly, certain
limited restrictions may apply.

70.

Section 3.5.3 provides that the grounds upon which an applied-for gTLD
string may be considered contrary to generally accepted legal norms relating
to morality and public order are:
•
•

•
•

incitement to or promotion of violent lawless action;
incitement to or promotion of discrimination based upon race, color,
gender, ethnicity, religion or national origin, or other similar types of
discrimination that violate generally accepted legal norms recognizedunder principles of international law;
incitement to or promotion of child pornography or other sexual abuseof children; ora determination that an applied-for gTLD string would be contrary to
specific principles of international law as reflected in relevantinternational instruments of law.

71.

Finally, Section 3.5.3 requires the Expert Panel to conduct its analysis on thebasis of the applied-for gTLD string itself. If need be it may, however, use
the intended purpose of the TLD as stated in the Application as additional
context. For the purpose of its decision in this case, the Expert Panelinterprets the latter as including the effects of the use of the applied-for
gTLD string .broker. In its response (s. 21) the Applicant has taken a similar
approach by arguing ‘that nothing in the context of the Application turns thecommercial term “broker” into a string likely to breach international normsof morality or public order.’72.

The Expert Panel concludes from Section 3.5.3 that for a Limited Public
Interest Objection to be accepted, it must show that the gTLD string is (a)contrary to general principles of international law for morality and publicorder, such as can be found in the list of international conventions, or (b)incitement to or promotion of specifically described unlawful conduct, or (c)contrary to specific principles of international law as reflected in relevantinternational instruments of law. The Expert Panel considers these categories
not necessarily to be mutually exclusive in the sense that they may partiallyoverlap.

73.

The Expert Panel also considers that the Limited Public Interest Objection ofSection 3.5.3 must also be understood in the light of the discussion on closed
gTLDs and thus especially in function of the ICANN NGPC Decisions
2013.06.25.NG04-06, 2013.09.28.NG02, and its decisions taken on 16
November 2013, and the on-going dialogue between NGPC and GAC(above section 3.2). These decisions and the dialogue show that, within theoverall procedure for new gTLD registrations, the issues relating to the non-	
  page 19	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	  exclusive or exclusive use of generic strings (including consumer andcompetition issues) will be taken care of by ICANN in line with a publicly
discussed and co-ordinated policy.
C.

OBJECTOR’S REQUEST TO STAY THE PROCEEDINGS74.

On 3 July 2013, the Objector requested the Centre to stay the Objection
proceedings. It referred to Resolution 2013.06.25.NG06 adopted by the
ICANN Board New gTLD Program Committee (‘NGPC’), directing ICANN
staff to defer moving forward with the contracting process for applicantsseeking exclusive registry access for generic strings, pending a dialogue with
the Governmental Advisory Committee on this issue. Although the
Resolution does not specifically state what effect it has on pending objection
proceedings, the Objector assumes that the Resolution should have the same
effect on gTLD dispute resolution service providers as it does on ICANN
staff. The Objector believes that it is in the interest of judicial efficiency that
objection proceedings be stayed pending further direction from ICANN.

75.

On 8 July 2013, the Applicant responded by pointing out that thedeliberation by ICANN of the GAC advice and concerns regarding closed
generic strings are a matter of policy for ICANN and not a ground for raisinga Limited Public Interest Objection. It argues that if ICANN were to change
its policy and restrict the grounds upon which applicants can apply forclosed generic strings, this would require amending the applications to becompliant. Any such change in ICANN policy would not support or defeat a
Limited Public Interest Objection. If ICANN does not amend its policy, theApplication would proceed without amendment. In either situation, therequirements for a Limited Public Interest Objection have not been met.

76.

On 16 July 2013, the Centre in its capacity as Dispute Resolution Service
Provider has informed the parties that ICANN has informed ICC that at thisstage it has not yet taken a final decision in relation to the next steps of theapplications for Exclusive Registry Access for Generic Strings. The Centre
held that it cannot stay the proceedings pursuant to the Procedure or theRules since the parties have not reached an agreement in this matter. The
Centre invited the parties to discuss this question with the Expert Panel.

77.

The Expert Panel has taken notice of the Objector’s above-mentioned
request to stay the proceedings, the Applicant’s response and the Centre’s
decision. The Expert Panel in particular noted that the Objector argues that
Resolution 2013.06.25.NG06, directing ICANN staff to defer moving
forward with the contracting process pending a dialogue with theGovernmental Advisory Committee (GAC) should have the same effect on
gTLD dispute resolution service providers.

	
  page 20	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	
  
78.

The Expert Panel considered that the Resolution and the dialogue may
indeed impact closed generic string applications including the .broker
Application. The relevant point for staying this procedure is, however,whether and if so how, the Resolution and the dialogue as well as the
expected further direction from ICANN will specifically impact decisions ofExpert Panels with respect to the Limited Public Interest Objection as set out
in Section 3.5.3 of the Guidebook.

79.

The Expert Panel does not see any reasons why this would be the case. As
made clear by Resolutions 2013.06.25.NG05 and NG06, 2013.09.28.NG02,
and the NGPC decisions taken on 16 November 2013, the question of how toaddress the issues relating to closed generic string applications are to beresolved by NGPC itself at the stage of deciding on the contracting and its
modalities, not at the prior stage of resolving disputes resulting fromobjections by third parties. There is no indication that any policy decision
resulting from the dialogue between NGPC and GAC would ultimately
concern the Limited Public Interest Objection that is the basis for the present
procedure. The Expert Panel therefore considered that there is no need forfurther discussion on whether to stay these proceedings, and shallaccordingly proceed to render its Expert Determination in this matter.

D.

QUICK LOOK PROCEDUREa)

Framework for the Quick Look Assessment

80.

Section 3.2.2.3 of the Guidebook requires the Expert Panel to first conduct a
Quick Look Procedure by assessing whether the Limited Public Interest
Objection falls within one of the categories that have been defined in Section
3.5.3 (see above, paragraphs 68-73). If the Limited Public Interest Objection
does not fall within one of these categories it would be manifestly
unfounded. Even if the objection is framed to fall within one of thesecategories, other facts may clearly show that the objection is abusive andhence manifestly unfounded.

81.

The Expert Panel notes that the scope of the Quick Look Procedure is to
identify and eliminate frivolous and/or abusive objections. This scope is
directly linked to the inclusive standing base, implying that anyone may filea Limited Public Interest Objection. For this reason Objectors are subject toa Quick Look Procedure.

82.

The Expert Panel will therefore first establish (a) whether the Objection falls
within one of the categories of Section 3.5.3. If the answer is in theaffirmative, the Expert Panel will consider whether the Objection
nonetheless constitutes (b) an abuse of the right to object or (c) can bedeemed to be frivolous. When answering these questions the Expert Panel	
  page 21	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	
  will take into account the scope of the Quick Look Procedure as describedabove.
b)

Quick Look Assessment by the Expert Panel

83.

The Expert Panel observes that the Objector has framed its Objection in thewording of Section 3.5.3. It therefore invokes one of the applicable
categories and the Expert Panel concludes that the Objection is not for thisreason manifestly unfounded.

84.

As to the question whether the Objection is nonetheless abusive, the Expert
Panel first notes that the examples given in the Guidebook (multiple
objections filed by the same or related parties against a single applicant or an
objection that attacks the applicant, rather than the applied-for string) areclearly not at stake in this case. The Expert Panel also observes that the
Objection is presented in a learned and consistent manner and that no part ofit gives an indication that the Objector would be abusing its right to object orthat the Objection has abusive character in any other sense. The Expert Panelconcludes that the Objection does not constitute an abuse of the right toobject.

85.

The Applicant has argued that the Objection is frivolous and abusive and ‘anundisguised objection on trademark and unspecified competition law
grounds’. In this respect, the Expert Panel once again observes that the
Objection is presented in a consistent manner and presents a number ofcolourable legal arguments with reference to a variety of legal instruments.
Moreover, the Objection raises concerns about the use of generic strings,
which are part of a broader discussion. At the time of submitting its
Objection, the Objector was not and could not be aware of the recent
developments with respect to ICANN’s policies as set out above inparagraphs 35-46. The Expert Panel is of the opinion that the question
whether the Objection is well-founded is not to be answered in the Quick
Look Procedure but at the substantive stage (paragraphs 87-106 below). The
Expert Panel concludes that the Objection is neither manifestly unfoundedon this ground.

86.

As to the Quick Look Procedure, the Expert Panel concludes that the
Objection is not manifestly unfounded on any of the grounds provided by
Section 3.2.2.3.

	  page 22	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	
  
E.

SUBSTANTIVE ASSESSMENT87.

The Objector has filed the Objection on the ground that allowing registrationof the .broker gTLD string would be contrary to principles of internationallaw because it would cause harm to consumer interest and to competition.

a)

The Objector’s preliminary arguments

88.

The preliminary arguments of the Objector are found on pages 6-7 of the
Objection and summarised in paragraphs 48 and 49 above. In essence, theargument put forward by the Objector is that the term broker is subject tonational and supranational legislation. The Applicant (s. 32) argues thatthese regulations are not as extensive as the Objector alleges and that the
Objection ignores the many uses of ‘broker’ that are unregulated, such as‘pawn broker’, ‘stamp broker’, ‘marriage broker’ and ‘power broker’.

89.

Firstly, the Expert Panel observes that the Applicant is a broker in financial
derivatives and intends to use the .broker string in precisely that capacity. Its
argument that there are many uses of ‘broker’ that are unregulated istherefore not relevant.

90.

The Expert Panel also observes that the Objector only refers to national andsupranational legislation. As mentioned above (paragraph 68), Section 3.5.3of the Guidebook states that national laws not based on principles ofinternational law are not a valid ground for a Limited Public Interest
Objection. The Expert Panel considers that the legal instruments to which
the Objector refers are not based on principles of international law for
morality and public order. Neither is the Objector’s argument linked to anyof the other grounds mentioned in Section 3.5.3. The Expert Panel concludes
that this argument of the Objector must be rejected.

91.

As to the Objector’s argument regarding the discussion on gTLD
applications for generic terms, the Expert Panel considers that the issues
raised by the Objector refer to the broader context of the application
procedures for gTLD strings and that this discussion has not yet beenconcluded. As the Expert Panel pointed out above (paragraphs 35-46), this
discussion has progressed since the submission of the Objection, particularly
by the adoption of ICANN NGPC Resolutions 2013.06.25.NG04-06,
2013.09.28.NG02, and the NGPC decisions taken on 16 November 2013,indicating that a solution for the issues of competition law and consumer
protection is to be found at the final contracting stage and that this will
happen through the open fair access clause for non-exclusive registrations,while the possibility and the requirements for exclusive registry access togeneric strings will be subject of a further dialogue with the GAC, taking
into account how the exclusive access registries serve a public interest goal.

	
  page 23	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	  The Expert Panel appreciates that the issues put forward by the Objector
may still be relevant for that discussion but considers that the Panel’s task islimited to assessing whether the gTLD string .broker is contrary to general or
specific principles of international law for morality and public order. Against
this background, the Expert Panel observes that no general or specificprinciple of international law for morality and public order or any of theother grounds mentioned in Section 3.5.3 assists the Objector’s argument.
The second argument put forward by the Objector therefore also needs to be
rejected.
b)

The .broker string would have an anti-consumer effect92.

The arguments of the Objector on this issue are found on pages 7-8 of the
Objection and summarised in paragraphs 50-52 above. The gist of the
Objector’s argument here is that allowing the .broker string to be operated by
the IG Group would harm consumer interests.

93.

The Expert Panel considers that the Objector’s arguments on this issue may
be relevant in the broader context of the application procedures for gTLD
strings but it also reiterates that the Expert Panel’s task is limited toassessing whether the gTLD string .broker is contrary to general or specificprinciples of international law for morality and public order.

94.

The Expert Panel notes that the Objector in very general terms refers to rulesof national and supranational law and only in the context of the use of theword ‘broker’. The Expert Panel fails to see how these laws are based on a
general or specific principle of international law for morality and publicorder, as required by Section 3.5.3. Neither can the objection be couched in
the terms of the other grounds mentioned in Section 3.5.3. Therefore, thePanel has decided to reject this argument.

c)Competition will suffer if .broker is allowed to proceed95.

The arguments of the Objector on this issue are found on pages 8-9 of the
Objection and are summarised in paragraphs 53-56 above. The gist of the
Objector’s second argument is that allowing the .broker string to be operated
by the Applicant would harm competition.

96.

The Expert Panel considers that the Objector’s arguments on this issue may
also be relevant in the broader context of the application procedures for
gTLD strings but it reiterates that the Expert Panel’s task is limited toassessing whether the gTLD string .broker is contrary to general or specificprinciples of international law for morality and public order.

	  page 24	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	
  
97.

Before assessing this argument, the Expert Panel notes that the Applicant
argues (s. 15) that competition laws do not apply. For this purpose, it quotes
p. 10 of the Explanatory Memorandum published by ICANN in May 2009:19
The competition (antitrust) laws of certain countries operate to limit freedomof expression (e.g., the denigration of a third party’s product or service). In
light of the lack of uniformity in this area and taking into consideration theprotection of third party rights available through legal rights objections, itdoes not appear necessary or desirable to include such a category in thestandards applied to morality and public order objections.

98.

Unlike the Applicant, the Expert Panel does not interpret this statement as
generally excluding anti-competitive effects as a ground for the Limited
Public Interest Objection. The statement refers to competition law rules
limiting the freedom of expression and therefore only insofar these rules canbe considered to be excluded from the Limited Public Interest Objection
grounds. The Expert Panel concludes that an objection can still be based onother competition law concerns, provided these amount to the string being
contrary to general or specific principles of international law for morality
and public order.

99.

According to the Objector, under the Madrid Agreement and Protocol, if aterm is generic, this constitutes an absolute ground for refusing international
registration of a trademark. The Objector also refers to Article 6quinquies of
the Paris Convention (presumably the Objector means the Paris Convention
for the Protection of Industrial Property), holding that trademarks may not be‘devoid of any distinctive character, or consist exclusively of signs orindications which may serve, in trade, to designate the kind, quality,
quantity, intended purpose, value, place of origin, of the goods.’ Finally, theObjector refers to European Union and USA regulations holding similar
provisions.

100.

In this respect, the Applicant argues (s. 25) that breach of trademark laws isdealt with by a separate Legal Rights Objection, which has its own standing
requirements, standards, forum and rules but it also rightly argues that the
Objector would have no standing to bring such an Objection. The Expert
Panel understands, however, that the aim of the Objector’s Limited Public
Interest Objection is not to invoke the protection trademark rights but toraise issues of a broader character.

101.

The Applicant also argues (s. 19), that the WIPO (trademark) treaties were
excluded from the final version. The Expert Panel notes that the list oftreaties in the final version of Section 3.5.3 indeed does not mention any of

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
19

http://archive.icann.org/en/topics/new-gtlds/morality-public-order-30may09-en.pdf (last accessed on
30 August 2013).

	  page 25	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75	  the WIPO administered intellectual property treaties or the TRIPS
Agreement. However, the Panel also considers that neither Section 3.5.3 nor
any other part of the Guidebook excludes those treaties from being applied.
On the contrary, Section 3.5.3 explicitly notes that the treaties are included
to serve as examples, rather than an exhaustive list. On this basis, the Expert
Panel concludes that such treaties could still carry an objection that the stringis contrary to general or specific principles of international law for morality
and public order.
102.

The Expert Panel understands that the Objector’s broader argument is that
where a generic term like ‘broker’ would not qualify for international
registration as a trademark because it would be an impediment tocompetition this would also go for generic terms for gTLD strings such as.broker. Therefore, the gist of the Objector’s argument is not about
trademarks but about impediment to competition.

103.

In this respect, the Expert Panel notes that throughout the legal systems,
competition law issues are considered and valued in various ways. Insofar as
the Objector invokes certain trademark protection treaties and laws, theExpert Panel considers that these instruments may be based on competition
law considerations but that their provisions as such do not provide evidenceof an underlying principle of international law for morality and public order.

104.

The Expert Panel concludes that this argument of the Objection is ultimately
not sustained by any general or specific principle of international law for
morality and public order, as required by Section 3.5.3. The argument put
forward by the Objector is therefore rejected.

F.

CONCLUSION

105.

The Expert Panel concludes that the Limited Public Interest Objection
submitted by Ameritrade against the .broker gTLD string is unfounded andthat it should therefore be rejected.

VI.

COSTS

106.

The Expert Panel decides that IG Group, as the prevailing Party in thisprocedure, is entitled to the refund by the ICC of its advance payment ofcosts paid pursuant to Article 14(e) of the Procedure.

	  page 26	  Expert Determination - ICC Case Reference: EXP/458/ICANN/75

	
  
VII.

DECISION

107.

The Expert Panel unanimously decides that the Limited Public Interest
Objection brought by the Objector TD AMERITRADE against the Applicant
IG GROUP HOLDINGS PLC's Application for the gTLD string ‘.broker’ isrejected and that the Applicant prevails in this dispute.

108.

The advance payment of Costs made by the Applicant shall be refunded by
the Centre in accordance with Article 14(e) of the Procedure.

Date: 11 December 2013
Signatures:_______________________
Prof. Jan Kleinheisterkamp,
Co-expert of the Expert Panel______________________Mr. Assen Alexiev,
Co-expert of the Expert Panel_______________________
Prof. Cees van Dam,
Chair of the Expert Panel	
  page 27