THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/417/ICANN/34

PROF. ALAIN PELLET, INDEPENDENT OBJECTOR(FRANCE)vs/
GOOSE FEST, LLC(USA)(Consolidated with CASE No. EXP/416/ICANN/33
PROF. ALAIN PELLET, INDEPENDENT OBJECTOR (FRANCE) vs/ DOTHEALTH,
LLC (USA))This document is an original of the Expert Determination rendered in conformity with the
New gTLD Dispute Resolution Procedure as provided in Module 3 of the gTLD Applicant
Guidebook from ICANN and the ICC Rules for Expertise.

EXPERTISE PROCEEDINGS UNDER THE
NEW gTLD DISPUTE RESOLUTION PROCEDURE
INTERNATIONAL CENTRE FOR EXPERTISE
OF THE INTERNATIONAL CHAMBER OF COMMERCE
Consolidated Cases EXP/416/ICANN/33 (c. EXP/417/ICANN/34)
Expert Determination for Case EXP/417/ICANN/34

PROF. ALAIN PELLET, INDEPENDENT OBJECTOR(Objector)
vs.
GOOSE FEST, LLC(Applicant)___________________________________________
Expert Determination___________________________________________
Members of the Panel:
Dr. Stanimir A. Alexandrov (Chair)Dr. Maxi C. Scherer (Co-Expert)
Prof. Frédéric Bachand (Co-Expert)

Independent Objector:

Applicant Goose Fest, LLC:

Prof. Alain Pellet
16, Avenue Alphonse de Neuville92380 Garches
FranceMr. John M. Genga & Mr. Don C.
Moody
The IP & Technology Legal Group P.C.
15260 Ventura Blvd., Suite 1810
Sherman Oaks, CA 91403
USA

Table of Contents
I.

Introduction ........................................................................................................................4

II.

Procedural History.............................................................................................................6

III.

Applicable Procedural and Substantive Rules ..............................................................11

IV.

V.

A.

Quick Look Procedure ........................................................................................12B.

The Applicable Standards ...................................................................................14

Summary of the Parties’ Positions .................................................................................16A.

The IO’s LPI Objection .......................................................................................16

B.

Goose Fest’s Response .........................................................................................21C.

Additional Written Statements by the Parties ..................................................25

Findings of the Panel .......................................................................................................30
A.

The Merits of the IO’s LPI Objection ................................................................33i.
The .health string is not in itself contrary to general principles ofinternational law for morality and public order...............................................33ii.
The manner in which Goose Fest proposes to operate a .health gTLD
registry does not conflict with general principles of international law for
morality and public order...................................................................................36

VI.

B.

The Alternative Remedy Sought by the IO .......................................................40

C.

Fees and Costs ......................................................................................................42

Determination of the Panel .............................................................................................432

Definitions of Abbreviations and Terms Used:
Abbreviation

Term

ADR

Amicable Dispute Resolution

AGB

ICANN gTLD Applicant Guidebook, June 4, 2012 version

ALAC

ICANN At-Large Advisory Committee

ApplicantGoose Fest, LLC

CentreInternational Centre for Expertise of the International Chamber of Commerce

DonutsDonuts, Inc.

DRSP

Dispute Resolution Service Provider

GAC

Government Advisory Committee

gTLD

Generic Top-Level Domain

ICANN

Internet Corporation for Assigned Names and Numbers

ICC

International Chamber of Commerce

ICCPRInternational Covenant on Civil and Political Rights

IO

Independent Objector

LPI Objection

Limited Public Interest Objection

Panel

Dr. Stanimir A. Alexandrov, Dr. Maxi C. Scherer, Prof. Frédéric Bachand

Procedure

Attachment to Module 3 of the AGB

Rules

ICC Expertise Rules

TLD

Top-Level Domain

UN

United Nations

WHO

World Health Organization

3

Expert Determination
I.

Introduction
1.

The dispute before the Panel involves a Limited Public Interest Objection(generally, an “LPI Objection” and, specifically, the “Objection”) filed in connection with the
new generic top-level domain (“gTLD”) application process administered by the Internet
Corporation for Assigned Names and Numbers (“ICANN”). The Objection was filed by the
ICANN Independent Objector (“IO”), Professor Alain Pellet. It is directed at Goose Fest, LLC(“Goose Fest” or the “Applicant”), who filed an application to operate a new .health gTLD
registry (the “Application”).
2.

Professor Pellet has served as the IO for ICANN’s new gTLD application processsince 14 May 2012.1 The contact information provided by Professor Pellet for the purpose of
these proceedings is 16, Avenue Alphonse de Neuville, 92380 Garches, France. His email
address is: contact@independent-objector-newgtlds.org. Professor Pellet is represented in theseproceedings by: Ms. Héloïse Bajer-Pellet (bajer.avocat@gmail.com),2 15, Rue de la Banque,75002 Paris, France; Mr. Daniel Müller (mail@muellerdaniel.eu), 20, Avenue du Général de
Gaulle, 78290 Croissy sur Seine, France; Mr. Phon van den Biesen(phonvandenbiesen@vdbkadvocaten.eu), Van den Biesen Kloostra Advocaten, De Groene
Bocht, Keizersgracht 253, 1016 EB Amsterdam, The Netherlands; and Mr. Sam Wordsworth(SWordsworth@essexcourt.net), Essex Court, 24 Lincoln’s Inn Fields, London WC2A 3EG,
United Kingdom.

1

See ICANN, The Independent Objector, http://newgtlds.icann.org/en/program-status/odr/independent (last visited
24 Sept. 2013).
2

Ms. Bajer-Pellet also provided an email address of avocat@bajer.fr.

4

3.

Under the ICANN Applicant Guidebook (“AGB”), the IO has broad standing to

object to proposed new gTLDs. The IO is tasked with “[a]cting solely in the best interests ofglobal Internet users” and “can lodge objections in cases where no other objection has been
filed.”3 These objections are limited to LPI Objections and Community Objections,4 and the “IO
cannot object to an application unless there is at least one comment in opposition to theapplication made in the public sphere.”5 The IO has standing in this matter because there havebeen public comments made in opposition to the .health gTLD applications.6 Finally, the AGB
requires that the IO “be and remain independent and unaffiliated with any of the gTLD
applicants.”74.

Goose Fest, LLC is a company incorporated and organized under the laws ofDelaware, USA, with its principal place of business at 155 108th Avenue NE, Suite 510,
Bellevue, Washington 98004, USA. Its email address is: goosefest@donuts.co. Goose Fest isrepresented in these proceedings by: Mr. John M. Genga (jgenga@gengalaw.com) and Mr. Don
C. Moody (don@newgtlddisputes.com), The IP & Technology Legal Group, P.C., dba New
gTLD Disputes, 15260 Ventura Boulevard., Suite 1810, Sherman Oaks, CA 91403 USA.
5.

The present case, EXP/417/ICANN/34, is consolidated with another caseinvolving an LPI Objection asserted by the IO against an application for the .health gTLD string,
EXP/416/ICANN/33. The applicant in that matter, DotHealth, LLC (“DotHealth”), is a company

3

AGB, Section 3.2.5.

4

Id.

5

Id.

6

See ICANN, Public Comments, https://gtldcomment.icann.org/commentsfeedback/applicationcomment/viewcomments (last visited 9 Sept. 2013).
7

AGB, Section 3.2.5.

5

incorporated and organized under the laws of Delaware, USA, with its principal place ofbusiness at 354 Walthery Avenue, Ridgewood, NJ 07450 USA. The Panel is rendering aseparate determination in the consolidated case EXP/416/ICANN/33.
II.

Procedural History
6.

On 13 June 2012, Goose Fest submitted its Application to operate a new .healthgTLD registry. ICANN reviewed Goose Fest’s Application during the Initial Evaluation stage
provided for under Section 2 of the AGB and determined that it met all requirements applicableat that stage of the evaluation process.8
7.

The International Centre for Expertise (“Centre”) of the International Chamber ofCommerce (“ICC”) received the IO’s LPI Objection to Goose Fest’s Application on 12 March
2013. This was conveyed to the IO in a letter dated 15 March 2013 in which the Centre alsoannounced to the IO that the present proceedings would be handled by a Case Management
Team.98.

In a letter dated 2 April 2013, the Centre informed the IO that, further to an

administrative review of the Objection conducted pursuant to Article 9 of the New gTLD
Dispute Resolution Procedure (“Procedure”) attached to Module 3 of the AGB, it had found that
the Objection complied with Articles 5-8 of the Procedure.10 As a result, the Objection was
registered for processing in accord with Article 9(b) of the Procedure. The Centre also informed
the IO that it would publish the required information regarding the proceedings, and invite Goose
Fest to file a Response under Article 11(b) of the Procedure. The Centre reminded the IO that
8

See ICANN, New gTLD Program: Initial Evaluation Report: Goose Fest, 14 June 2013, available at
http://newgtlds.icann.org/sites/default/files/ier/gla5o8diWbr6espQa6ieq2u7/ie-1-1489-82287-en.pdf.
9

See the Centre’s letter to Prof. Alain Pellet, Independent Objector (15 March 2013).

10

See the Centre’s letter to Prof. Alain Pellet, Independent Objector (2 April 2013).

6

the Parties could seek a settlement or amicable dispute resolution under the ICC Amicable
Dispute Resolution (“ADR”) Rules.11
9.

The Centre first raised the issue of consolidation in its letter to the parties dated 2

April 2013.12 On 12 April 2013, it informed the IO and Goose Fest that it was contemplating
consolidating four cases relating to the applied-for .health gTLD string: No.
EXP/416/ICANN/33; No. EXP/417/ICANN/34; No. EXP/418/ICANN/35; and No.
EXP/409/ICANN/26. Each of the Parties in Case No. EXP/417/ICANN/34 was invited toprovide the Centre with comments regarding the potential consolidation on or before 15 April
2013.1310.

On 19 April 2013, the Centre wrote to the IO and to Goose Fest to inform theParties that it had decided not to proceed with the consolidation while noting that the Parties
themselves may propose consolidation of the objections across the four cases involving the.health gTLD.14 The Centre further requested that Goose Fest pay its initial filing fee of € 5,000
to proceed in the matter and avoid a default judgment against it.15
11.

On 30 April 2013, the Centre wrote to the Parties to inform them that, on 25 April

2013, the representative of an applicant in another .health gTLD case (EXP/418/ICANN/35), Dot
Health Ltd., requested consolidation of the .health gTLD cases in accordance with Article 12 of

11

See id.

12

See id.

13

See the Centre’s letter to Prof. Alain Pellet, Independent Objector & Daniel Schindler, Goose Fest, LLC (12 April2013).

14

See the Centre’s letter to Prof. Alain Pellet, Independent Objector & Daniel Schindler, Goose Fest, LLC (19 April2013).

15

See id.

7

the Procedure. Each of the Parties in Case No. EXP/417/ICANN/34 was invited to provide theCentre with comments regarding the potential consolidation on or before 3 May 2013.16
12.

Goose Fest filed a letter expressing its opinion on consolidation with the Centre

on 2 May 2013.17
13.

On 3 May 2013, the Centre informed the Parties that the following cases wereconsolidated pursuant to Article 12 of the Procedure: EXP/416/ICANN/33;
EXP/417/ICANN/34; and EXP/418/ICANN/35. As a consequence of the consolidation, theCentre explained that the above-referenced cases were joined in one administrative procedure,
but that the “Applicants shall file a separate Response to each specific Objection.”18 Beyond
this, the Centre explained that “if one of the parties in the consolidated proceeding defaults, thiswill affect the defaulting party only and will have no incidence on the other parties to theconsolidated proceeding,” while reminding the Parties that a single panel would be appointed forthe consolidated proceeding to “examine each Objection on its own merits and . . . decide
whether, based on the specificities of each case, to issue one or separate Expert Determinationsin [the] consolidated cases.”19
14.

On 2 June 2013, Goose Fest delivered its response to the Objection to the IO, tothe other .health gTLD applicants, and to the Centre (the “Response”).
15.

On 3 July 2013, the Centre acknowledged receipt of the Applicant’s Response

and informed the Parties that, pursuant to Article 13 of the Procedure and Article 9(5)(d) of the16

See the Centre’s letter to Prof. Alain Pellet, Independent Objector & Daniel Schindler, Goose Fest, LLC (30 April2013).

17

See the Centre’s letter to Prof. Alain Pellet, Independent Objector, et al. (3 May 2013).

18

Id.

19

Id.

8

ICC Expertise Rules (“Rules”), the Centre had, on 28 June 2013, appointed the Panel as experts
in this matter in accordance with Article 3(3) of Appendix I of the Rules. The Centre requested
that any comments by the Parties be received on or before 8 July 2013. The comments wereinvited due to the Qualified Declaration of Acceptance and Availability, Statement of
Impartiality and Independence of Dr. Scherer. The Centre received no comments.
16.

The contact information for the three members of the Panel are as follows:
Dr. Stanimir A. Alexandrov
Sidley Austin LLP
1501 K Street NW
Washington, D.C. 20005
USA
salexandrov@sidley.com
Dr. Maxi C. Scherer
Wilmer Cutler Pickering Hale and Dorr LLP
49 Park Lane
W1K1PS London
United Kingdom
maxi.scherer@wilmerhale.com
Prof. Frédéric Bachand
Faculty of Law, McGill University
3644 PeelMontreal (Qc) H3A 1W9
Canadafrederic.bachand@mcgill.ca

17.

On 18 July 2013, the Centre wrote the Parties and the Panel to convey that

ICANN had informed the Centre that the application in case EXP/418/ICANN/35 (Dot HealthLtd. (Gibraltar)) had been withdrawn and the case was terminated.
18.

On 2 August 2013, the Centre acknowledged receipt of the advance payment ofcosts from each party and confirmed the full constitution of the Panel. On the same date, theCentre transmitted the case files for the consolidated cases to the Panel.

9

19.

In a letter dated 2 August 2013, the IO requested the Panel’s authorization to fileadditional written statements in both consolidated cases.20
20.

On 5 August 2013, the Panel invited Goose Fest to comment on the IO’s request

to file an additional written statement.21
21.

In its response dated 6 August 2013, Goose Fest objected to the IO’s request andsuggested that any further submission by the IO should be limited to “address only the issue of
his independence, which Goose Fest questioned in its Response to the Objection.”22
22.

On 7 August 2013, the Panel wrote to the Parties in both consolidated cases toinform them that they would be allowed to submit additional written statements of no more thanten (10) pages. The Panel set 14 August 2013 as the deadline for the IO to file an additional
written statement; Goose Fest was allowed to file a responsive additional written statement
within one week of receipt of the IO’s additional written statement.
23.

On 14 August 2013, the IO filed its additional written statement, including

annexes in support (“IO’s Additional Written Statement”).
24.

On 22 August 2013, Goose Fest filed its additional written statement, including

annexes in support (“Goose Fest’s Additional Written Statement”).
25.

On 23 August 2013, the Panel informed the Parties that the IO’s Objection would

not be dismissed under the “Quick Look” review provided for in Section 3.2.2.3 of the AGB.
26.

On 12 September 2013, the Panel requested that the Centre grant the Panel anextension until 10 October 2013 for rendering the Expert Determination. The Centre granted this20

See Letter from Prof. Alain Pellet, Independent Objector, to Stanimir Alexandrov, et al. (2 August 2013).

21

See Letter from Stanimir A. Alexandrov to Andrew Ryan Weissberg, DotHealth LLC, et al. (5 August 2013).

22

See Email from John M. Genga to Stanimir A. Alexandrov, et al. (6 August 2013). The Panel will address Goose
Fest’s insinuations regarding the IO’s independence infra at ¶¶ 88-90.

10request on 13 September 2013. A draft of this Expert Determination was submitted for scrutiny
to the Centre within the extended time limit in accordance with Article 21(a) and (b) of theProcedure.
27.

Following the submission of the draft Expert Determination, on 4 December 2013

Goose Fest submitted to the Panel a request to review recent developments in ICANN’s gTLD
process for consideration in its decision. The IO objected to this request. The Panel declined toadmit Goose Fest’s proposed evidence into the record.
28.

All communications by the Parties, the Panel, and the Centre were submitted

electronically, in accordance with Article 6(a) of the Procedure.
29.

Neither party requested that a hearing be held. In the absence of “extraordinary

circumstances” within the meaning of Article 19(b) of the Procedure, the Panel decided not tohold a hearing in this matter.
III.

Applicable Procedural and Substantive Rules
30.

It is common ground between the Parties that, pursuant to Articles 4(a) and4(b)(iii) of the Procedure and Module 3 of the AGB, Section 3.3, the present proceedings aregoverned by the AGB, the Procedure, the Rules and the ICC Practice Note on the Administrationof Cases (the “ICC Practice Note”).
31.

As is clearly set out in Article 20(c) of the Procedure, “the Objector bears theburden of proving that its Objection should be sustained in accordance with the applicablestandards.”23
32.

The language of all submissions and proceedings in this matter is English.24 No

other language was used in any submissions, supporting evidence, or proceedings.

23

See also AGB, Section 3.5.

11

A.

Quick Look Procedure

33.

Under AGB Section 3.2.2.3, “[a]nyone may file a Limited Public Interest

Objection.”25 Due to the open standing provided under the AGB, LPI Objections are subject to a
“Quick Look” procedure “designed to identify and eliminate frivolous and/or abusive
objections.”26 Thus, “[a]n objection found to be manifestly unfounded and/or an abuse of theright to object may be dismissed at any time.”27
34.

While the Quick Look procedure requires an assessment of “the merits of theobjection[s],” the Panel’s role at the Quick Look review stage is limited to considering whether
the objections are “manifestly unfounded” or constitute “an abuse of the right to object.”28
Goose Fest first contends that the Objection is “manifestly unfounded.”29
35.

An objection is “manifestly unfounded” if it does “not fall within one of thecategories” defined as grounds for an LPI Objection in AGB Section 3.5.3. Under AGB Section
3.5.3, the grounds for a limited public interest objection are limited to objections that an appliedfor gTLD string may be contrary to generally accepted legal norms relating to morality andpublic order on the basis of: (i) incitement to or promotion of violent lawless action; (ii)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 recognized under principles of international law; (iii) incitement to or promotion of child24

Art. 5(a) of the Procedure.

25

AGB, Section 3.2.2.3.

26

Id..

27

Id.

28

Id.

29

Goose Fest Resp. at 7-8.

12

pornography or other sexual abuse of children; or (iv) a determination that an applied-for gTLD
string would be contrary to specific principles of international law as reflected in relevantinternational instruments of law.
36.

Goose Fest further contends that, by “filing multiple objections against [it] andrelated parties,” the IO’s Objection amounted to an “abuse of process.”30 Pursuant to Section
3.2.2.3 of the AGB, “multiple objections filed by the same or related parties against a single
applicant may constitute harassment of the applicant, rather than a legitimate defense of legal
norms that are recognized under general principles of international law,” and “[a]n objection that
attacks the applicant, rather than the applied-for string” may amount to an “abuse of the right toobject.”31
37.

In response to the Applicant’s request that the Panel dismiss the Objection underthe Quick Look procedure,32 the Panel ruled on the matter in its letter to the Parties dated 23
August 2013.33 The Panel did not find that the IO’s Objection was manifestly unfoundedbecause the IO expressly invoked “specific principles of international law as reflected in relevantinternational instruments of law,” which is a ground for an objection contemplated under the
AGB, Section 3.5.3.34
38.

The Panel further reviewed the Objection to consider whether it constituted an“abuse of the right to object.”35 The Panel concluded that the it did not. On 23 August 2013, the30

Id. at 8.

31

AGB, Section 3.2.2.3

32

Goose Fest Response at 7-8.

33

See Letter from Stanimir A. Alexandrov to Prof. Alain Pellet, Independent Objector, et al. (23 August 2013).

34

See id.

35

AGB, Section 3.2.2.3.

13

Panel, informed the Parties of the Panel’s decision not to dismiss the Objection through the
Quick Look procedure.36
B.

The Applicable Standards

39.

The standards by which the merits of the IO’s LPI Objection are to be assessed

are set out in Section 3.5.3 of the AGB. To succeed, the IO must establish that “the applied-for
gTLD string is contrary to general principles of international law for morality and publicorder.”37 The AGB further states that “[t]he panel will conduct its analysis on the basis of theapplied-for gTLD string itself,” and that “[t]he panel may, if needed, use as additional context
the intended purpose of the TLD as stated in the application.”38
40.

ICANN provides in the AGB examples of instruments containing such “generalprinciples of international law for morality and public order” and upon which a panel may rely
while assessing the merits of an LPI Objection.39 The instruments listed in Section 3.5.3 of the
AGB are: the Universal Declaration of Human Rights (UDHR); the International Covenant on
Civil and Political Rights (ICCPR); the Convention on the Elimination of All Forms ofDiscrimination Against Women (CEDAW); the International Convention on the Elimination of
All Forms of Racial Discrimination; the Declaration on the Elimination of Violence against
Women; the International Covenant on Economic, Social, and Cultural Rights; the Convention
against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment; theInternational Convention on the Protection of the Rights of all Migrant Workers and Members of36

See Letter from Stanimir A. Alexandrov to Prof. Alain Pellet, Independent Objector, et al. (23 August 2013).

37

AGB, Section 3.5.3.

38

Id.

39

Id.

14

their Families; the Slavery Convention; the Convention on the Prevention and Punishment of the
Crime of Genocide; and the Convention on the Rights of the Child.40
41.

The AGB further states at Section 3.5.3 the grounds upon which an applied-for

gTLD string may be considered contrary to generally accepted legal norms relating to morality
and public order that are recognized under principles of public international law. The first threegrounds 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 othersimilar types of discrimination that violate generally accepted legal norms recognized underprinciples of international law; and incitement to or promotion of child pornography or othersexual abuse of children. The AGB adds that an LPI Objection may also be sustained upon adetermination that the “applied-for gTLD string would be contrary to specific principles ofinternational law as reflected in relevant international instruments of law.”41

40

Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810(Dec. 12, 1948); International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp.
(No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976; Convention on the
Elimination of All Forms of Discrimination against Women, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at
193, U.N. Doc. A/34/46, entered into force Sept. 3, 1981; International Convention on the Elimination of All Formsof Racial Discrimination, 660 U.N.T.S. 195, entered into force Jan. 4, 1969; Declaration on the Elimination ofViolence Against Women, G.A. res. 48/104, 48 U.N. GAOR Supp. (No. 49) at 217, U.N. Doc. A/48/49 (1993);
International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 UN G.A.O.R. Supp.
(No. 16) at 49, U.N. Doc. A/6316 (1966); 993 UNTS 3; 6 ILM 368 (1967); Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at
197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987; International Convention on the Protection of theRights of All Migrant Workers and Members of Their Families, G.A. res. 45/158, annex, 45 U.N. GAOR Supp. (No.
49A) at 262, U.N. Doc. A/45/49 (1990), entered into force July 1, 2003; Slavery, Servitude, Forced Labour andSimilar Institutions and Practices Convention of 1926 (Slavery Convention of 1926), 60 L.N.T.S. 253, entered into
force March 9, 1927; Convention on the Prevention and Punishment of the Crime of Genocide,78 U.N.T.S.
277, entered into force Jan. 12, 1951; Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N.
GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990.
41

AGB, Section 3.5.3.

15

42.

The IO objected to Goose Fest’s Application to operate a new .health gTLD

registry on that latter ground, namely that the proposed gTLD string is “contrary to specificprinciples of international law as reflected in relevant international instruments of law.”42
IV.

Summary of the Parties’ PositionsA.

The IO’s LPI Objection

43.

The IO’s LPI Objection to the Goose Fest Application is based on the IO’s

“determination that an applied-for gTLD string would be contrary to specific principles ofinternational law as reflected in relevant international instruments of law.”43 The IO notes in his
Objection that “the objections raised are based on the applied-for gTLD string itself in context
with the appreciation of the stated intended purpose as it may be derived from the description of
its position the Applicant has provided.”44
44.

The IO filed LPI objections to four .health gTLD applications, including theGoose Fest Application, predicated on the IO’s view that “health is not just another commodity”
and that, “under international law, ‘health’ is recognized as a fundamental human right with acorresponding obligation to respect, protect and fulfil this human right, which is primarily
entrusted to States and to intergovernmental organizations such as the United Nations.”45

42

Objection at ¶ 6 (citing AGB, Section 3.5.3).

43

Id.

44

Id. at ¶ 7 (citing to AGB Section 3.5.3, stating “[t]he panel will conduct its analysis on the basis of the applied-for
gTLD string itself. The panel may, if needed, use as additional context the intended purpose of the TLD as stated in
the application.”).

45

Id. at ¶ 9. At the same time, the IO does note that “this responsibility is no exclusively reserved for these public
entities.” Id.

16

45.

In support of his Objection to the Goose Fest Application, the IO devotes

considerable effort to explicating the ways in which the concept of “health” has been recognized
as a right under public international law.
46.

In particular, the IO cites Article 25 of the Universal Declaration of Human

Rights, which provides that “[e]veryone has the right to a standard of living adequate for thehealth and well being of himself and of his family . . .”46 to highlight that health is a fundamental
human right.47
47.

The IO also cites the International Covenant on Economic, Social and Cultural

Rights, which states “the right of everyone to the enjoyment of the highest attainable standard ofphysical and mental health,”48 to buttress his conclusion that “numerous instruments ofinternational law confirm[ ] the human rights-status of ‘health.’”49
48.

The IO supplements the above with further citations to statements by the United

Nations Committee on Economic, Social and Cultural Rights, the World Health Organization,and regional Human Rights Courts to support the IO’s position that access to health—and, byextension, health-related information—is a fundamental human right.50
49.

Having noted the degree to which “health” is recognized in international law as aright, the IO then declares that any entity seeking to operate a .health gTLD registry must:46

Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810(Dec. 12, 1948).

47

Objection at ¶ 10.

48

G.A. res. 2200A (XXI), 21 UN G.A.O.R. Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966); 993 UNTS 3; 6 ILM
368 (1967).

49

Objection. at ¶ 11.

50

Id. at ¶¶ 9-20.

17

Demonstrate awareness of its duty to see to it that this TLD is organized, set up andmanaged in such a way that the right to health . . . is fully respected and, consequently,
should demonstrate that this duty will be effectively and continuously implemented. In
addition, the Applicant should demonstrate how, given the public interest at stake, thepolicies and decision-making of the Applicant will be properly connected to the publicauthorities, national as well as international, that are under a legal obligation to respect,
protect and fulfil the right to health.51
50.

The IO explains in the Objection the “crucial role that governments are to play” inthis area and that “the promotion and protection of international health is inherent to the due
respect for generally accepted legal norms of public order that are recognized under fundamental
principles of international law.”52 Consequently, the IO avers, Goose Fest—or any entity
applying to operate a .health gTLD registry for that matter—must demonstrate how its operationof the registry will be “properly connected to the public authorities, national as well asinternational, that are under a legal obligation to respect, protect and fulfil the right to health.”53
The IO notes that Goose Fest’s Application is devoid of any information on such matters, andthat it is “entirely identical” to numerous applications filed by its parent entity Donuts Inc.
(“Donuts”) for various new gTLDs.54
51.

Another central element to the IO’s argument is that “access to health-related

information is an essential element of the right to health,”55 and “the right to health may becompromised in case any entity would launch a .health TLD without having given due
consideration to the fundamental rights and related obligations that are at stake and without

51

Id. at ¶ 25.

52

Id. at ¶ 15.

53

Id. at ¶ 25.

54

Id. at ¶¶ 27-30 (suggesting a “lack of awareness of the specifics of a .health gTLD”).

55

Id. at ¶ 17.

18

having considered how to include mechanisms that at all times would rather strengthen thanhinder these obligations and fundamental rights.”56
52.

In stating this view, the IO refers to the position taken by the Committee on

Economic, Social and Cultural Rights that “States [have a duty] to ensure that privatization of thehealth sector does not constitute a threat to the availability, accessibility, acceptability andquality of health facilities, goods and services.”57
53.

The IO refers to concerns found in public comments and GAC early warnings by

France and Mali to the .health gTLD applications regarding “the reliability and trustworthinessof a .Health TLD that is run by a private enterprise.”58 As a result, “[the IO] is of the view that
any Applicant applying for a .Health TLD should demonstrate awareness of its duty to see to itthat this TLD is organized, set up and managed in such a way that the right to health with all of
the implications discussed above . . . is fully respected and, consequently, should demonstratethat this duty will be effectively and continuously implemented.”59 The IO adds that “theApplicant should demonstrate how, given the public interest at stake, the policies and decisionmaking of the Applicant will be properly connected to the public authorities . . . that are under alegal obligation to respect, protect and fulfil [sic] the right to health.”60
54.

The IO further asserts that in its Application, Goose Fest failed to demonstrate

any “awareness of the fact that ‘health’ . . . represents a fundamental right.”61 The IO adds that,56

Id. at ¶ 21.

57

Id. at ¶ 20.

58

Id. at ¶ 22.

59

Id. at ¶ 25.

60

Id.

61

Id. at ¶ 29.

19

in his communication with Goose Fest, the Applicant “responded summarily . . . [and]highlighted some of the aspects already contained in its application and stated that it saw noreason whatsoever to deal with any issues raised by the IO[,] adding that it is opposed to any
form of measures other than those proposed in its Application.”6255.

The IO further takes issue with Goose Fest’s claim to have “consulted with andevaluated the ideas of international law enforcement, consumer privacy advocacy organizations,
intellectual property interests and other Internet industry groups to create a set of protections that
far exceed those in existing TLDs,”63 and points to the absence of any discussion on these topics
in Goose Fest’s Application.64
56.

Furthermore, the IO relies on a letter from the World Health Organization(“WHO”) to ICANN, dated 11 April 2011, expressing the views of some WHO representatives
that ICANN should postpone decisions on .health applications to allow for consultation with theglobal health community. The IO indicates that, at a minimum, the Panel should consider
postponing Goose Fest’s Application.65
57.

With respect to remedies, the IO first requests that the Panel uphold his Objection

against the .health gTLD string. Second, and alternatively, the IO asks that the Panelconditionally uphold his Objection until the Applicant adopts the necessary safeguards to ensure
the proper use of the .health gTLD.

62

Id. at ¶ 32.

63

Id. at ¶ 31.

64

Id.

65

Id. at ¶ 42.

20

B.

Goose Fest’s Response

58.

Goose Fest begins by explaining that “ICANN has articulated a presumption infavor of awarding new gTLDs to qualified applicants” and adds that the IO bears the burden ofproving that the Objection should be sustained in accordance with the applicable standards.66
Goose Fest argues that, by “alleging that health is an important issue and that a <.HEALTH>TLD could face abuse,” the IO fails to meet his burden because the IO instead must “prove thatthe string name itself would be contrary to generally accepted legal norms relating to morality
and public order to the same degree as a string name that would incite violent lawless action,
discrimination or child pornography.”67
59.

Goose Fest makes an affirmative case for its operation of a .health gTLD registryby noting that:
Applicant would make the <.HEALTH> domain open to all for legitimate use of that
common word’s many connotations. The registry would not only operate neutrally,
without favoring one constituency, but also with more than two dozen protections not
required of existing gTLDs, making abuse much less likely than it is today. Far frominciting lawless action, the new TLD will provide access to policymakers, critics,
commentators, and others with any level of interest or participation in the endless varietyof health-related matters – including fitness, nutrition, veterinary and alternative
medicine, and mental, emotional, relationship and financial health. All would havenondiscriminatory access to the gTLD, with unprecedented safeguards.68
Goose Fest further argues that the Objection “threatens the enhanced competition, choice,expression and security of new gTLDs.”69
60.

Beyond this, Goose Fest points to Donuts’ extensive preparation and commitment

to the new gTLD process, as well as its “team consist[ing] of industry veterans with long
66

Goose Fest Response at 5.

67

Id.

68

Id. at 6.

69

Id.

21

histories of contributing to ICANN’s policymaking process, successfully launching gTLDs,
building industry-leading companies, and bringing innovation, value and choice to the domainname marketplace.”70 Goose Fest notes that its affiliated companies have “passed the Initial
Evaluation process for at least 95 [new gTLD] applications” and that “ICANN has thus found . . .
that Donuts is ethically, technically and financial fit to operate safely the many registries forwhich it has applied.”71
61.

As mentioned earlier, Goose Fest asks the Panel to reject the Objection under the

Quick Look procedure on the ground that it is “manifestly unfounded” and constitutes “an abuseof the right to object.”72 Goose Fest labels the Objection as “manifestly unfounded” because it
does not “fall within one of the categories that have been defined as the grounds for such an
objection” as a result of the Objection focusing on the Applicant, rather than arguing that theapplied-for string runs “contrary to any specific principle of international law.”73 Additionally,
Goose Fest suggests that, “by filing multiple objections against the Applicant and relatedparties,” the IO has engaged in “harassment” of Goose Fest, which provides further justificationfor Quick Look dismissal.74
62.

Goose Fest then returns to its substantive argument against the IO’s Objection.

Goose Fest begins by reiterating that “the burden of proof . . . rests solely on the objector” andthat the Objection does not fall within the categories provided for in the AGB at Section 3.5.3.75
70

Id. at 7.

71

Id. at 12.

72

Id. at 7.

73

Id. at 8.

74

Id.

75

Id.

22

Goose Fest avers that, beyond this, the IO “fails to show specifically that, from a statement in the
Application, the Applicant intends to operate the TLD in contravention of ‘morality and publicorder.’”76
63.

Goose Fest frames this argument in the context of ICANN’s expressed support for

freedom of expression.77 Goose Fest argues that the fourth ground upon which an LPI objection
may be granted under Section 3.5.3 of the AGB (i.e., that a string is “contrary to generally
accepted legal norms relating to morality and public order” in that it is “contrary to specificprinciples of international law as reflected in relevant international instruments of law”) is thus
not a “catch-all provision for whatever the Objector may broadly consider as vaguely reflected ininternational law codifications that [the Objector] unilaterally deems relevant.”78
64.

Invoking the ejusdem generis canon of interpretation, Goose Fest argues that thisfourth ground must be construed in the context of the preceding grounds, and that its scope must
thus be limited to situations similar to those captured by those first three grounds.79 Goose Fest
asserts that its position is supported by statements made by ICANN while drafting the AGB thatindicate that this fourth ground was stated “in general terms in order to give a panel thediscretion to consider gTLD strings that do not fit within one of the three specific categories, but
only to the extent contrary to generally accepted legal norms relating to morality and publicorder to the same degree as the first three grounds.”80
76

Id. at 8-9.

77

Id.at 9, 10.

78

Id. (internal quotations omitted).

79

Id.

80

Id. (citing ICANN, New gTLD Draft Applicant Guidebook – Version 2, Analysis of Public Comment,
http://archive.icann.org/en/topics/new-gtlds/agv2-analysis-public-comments-31may09-en.pdf) (internal quotations
omitted, emphasis added).

23

65.

Goose Fest then explains its view that “no matter how one defines ‘morality’ or‘public order,’ one cannot argue that the string itself—the simple word ‘health’—indicates orincites any form of unlawful or wrongful behavior,” and that its Application provides no further
context suggestive of unlawful or wrongful behavior.81 Instead, Goose Fest argues, the IO has
merely focused on how Goose Fest intends to operate the applied-for string and “offer[ed] noevidence that tends in any way to prove that the string itself, or Applicant’s stated intent in
operating it, will violate . . . inarguable legal norms.”82 Goose Fest claims that the IO isessentially asking the Panel to infer from a series of irrelevant factors that Goose Fest not only
lacks any awareness of the issues related to the operation of a .health gTLD registry, but also that
its Application is tainted by malicious intent and conduct.83
66.

Goose Fest urges the Panel to find that the IO does not meet the “Objector’sburden of showing why Applicant should not be awarded the domain for which it has applied.”84
Instead, Goose Fest posits, the Objector “idealizes . . . how the Limited Public Interest objection
should operate” but this idealization “bears no resemblance whatsoever to what ICANN has
stated it must do.”85 Goose Fest then accuses the IO of “trying to replace the actual rules thatwere approved [by ICANN] and relied upon with his own ideas and preferences” that have no
relation to the New gTLD process.86 As a result, Goose Fest requests that the Panel “avoid

81

Id. at 10.

82

Id.

83

Id. at 10-11.

84

Id. at 12.

85

Id.

86

Id.

24

choking growth and legitimate activity” by sustaining the Objection,87 and instead deny the
Objection so that Goose Fest may foster greater choice and competition on the Internet.88
67.

In its Response, Goose Fest also makes allegations relating to the impartiality orbiases of the IO. These are discussed infra at Paragraphs 87-89.
C.

Additional Written Statements by the Parties

68.

The IO’s Additional Written Statement. Under the limited additional statement

procedure elaborated by the Panel in its 7 August 2013 letter, the IO used his Additional Written
Statement, filed 14 August 2013, to further several points relating to his Objection.
69.

First, the IO addresses Goose Fest’s allegations relating to his impartiality;89 these

allegations are discussed infra at Paragraphs 87-89.
70.

Second, the IO asserts that his LPI Objection in the present dispute is neither“manifestly unfounded” nor “abusive,” as alleged in Goose Fest’s Response, and thus should not
be dismissed under a Quick Look review by the Panel.90
71.

Third, the IO explains that his LPI Objection does not exceed the mandate

ICANN gave him for the filing of LPI and Community Objections. The IO notes that “thesubject-matter of this LPI Objection is not the term “health” but rather the intended use of theapplied for string and, in particular, the confiscation of “health” for purely commercial purposes
which is contrary to the general principles of international law.”91 In this argumentation, the IO

87

Id.

88

Id. at 12-13 (noting that any .health gTLD would already compete with numerous health-related second-leveldomains (“SLDs”) already in the market).

89

IO’s Additional Written Statement at ¶¶ 3-10.

90

Id. at ¶¶ 11-12.

91

Id. at ¶ 14.

25

encourages the Panel, in making its decision, to “use as additional context the intended purposeof the TLD as stated in the application.”92 He reiterates that his position is “of course, not thatthe term ‘health’ would be offensive and, therefore, objectionable per se but that the Application
does not guarantee its use in full respect for these general principles.”93
72.

The IO’s Additional Written Statement thus suggests that “the term ‘health’” isnot ipso facto contrary to generally accepted principles of international law, but that the“intended use of the applied for string . . . in particular, the confiscation of ‘health’ for purelycommercial purposes” was instead contrary to international law.94
73.

The IO argues that Goose Fest misconstrues Section 3.5.3 of the AGB in its

argument that the fourth ground upon which an LPI objection may be based must be construed inlight of the first three grounds.95 Instead, the IO invites the Panel to interpret the AGB liberally,
since adopting the Applicant’s ejusdem generis-based approach would inappropriately limit thesources from with a Panel may draw while considering an LPI objection.96
74.

The IO also argues that Goose Fest is incorrect to suggest that the Objection

infringes upon Goose Fest’s, and the public’s, freedom of expression.97 The IO points to Section
3.5.3 of the AGB, which states that freedom of expression “carries with it special duties andresponsibilities,” which, according to the IO, should lead to the rejection of the Application.98
92

Id. at ¶ 15.

93

Id.

94

Id. at ¶ 14.

95

Id. at ¶ 18.

96

Id.

97

Id. at ¶ 19.

98

Id.

26

75.

The IO concludes that the involvement of public authorities in the management of

the .health gTLD registry (which the IO argues is required, as detailed above)99 cannot occur,
firstly because of Goose Fest’s “inflexible position” to the effect that “the applied-for string will
be open to all consumers,”100 and, secondly, because Goose Fest does not intend to ensure thatsafeguards will be in place when a .health gTLD registry starts operating.101 Beyond this, the IO
suggests that a recent resolution adopted by the Sixty-sixth World Health Assembly on “eHealthStandardization and Interoperability” confirms his concerns.102
76.

Goose Fest’s Additional Written Statement. Goose Fest reiterates its view that

the IO’s Objection must be rejected on the basis of its failure to provide evidence sufficient “tomeet [the] Objector’s significant burden to prove that the applied-for string <.HEALTH> itself or its proposed use as stated by [the] Applicant in its New gTLD application . . . are ‘contrary to
general principles of international law for morality and public order as required for [LPI
objections].”103
77.

Goose Fest also reiterates its view that “the string is nothing more than [a] genericterm . . .which can be used in a variety of legitimate ways, none of which being ‘contrary to . . .
morality and public order.’”104 By way of example, Goose Fest makes reference to the potential
use of the term “health” in the context of financial services, relationship counseling, nutritionist99

See discussion supra at ¶¶ 49-56.

100

Id. at ¶ 20.

101

Id.

102

Id. at ¶ 21.

103

Goose Fest’s Additional Written Statement at 1.

104

Id. at 2.

27

services, psychology services, online learning sites, health insurance offerings, computer andmotor vehicle diagnostic tools, and veterinary services.105
78.

While explaining why—in its view—the IO has offered insufficient evidence tosupport his Objection, Goose Fest maintains that its Application is innocuous and in no way
indicative of any immorality or illegality.106
79.

Goose Fest claims that the IO has taken an overly-broad view of the grounds uponwhich an LPI objection may be granted by seeking to bar the registration of a gTLD on the solebasis that the term comprising the applied-for string is mentioned in international legal
instruments.107 Goose Fest characterizes the Objection as relating to the “open” operation of the
proposed registry, and as entailing that Goose Fest would need to develop some “connection”
with relevant “authorities” to satisfy the IO’s concerns.108 Goose Fest explains that this is not
required under the AGB and does not constitute a valid basis upon which an LPI objection may
be granted.
80.

Goose Fest also explains that its Application does not suggest that it would“operate [a .health registry] contrary to general principles of international law for morality andpublic order,” and that as a result of its explicit recognition of .health as a sensitive string and its
commitment to twelve protective measures beyond the fourteen required by ICANN, “a<.HEALTH> gTLD run by Applicant will be safer than most any gTLD the Internet has everknown, and a leader among all new gTLDs in that respect.”109
105

Id.

106

Id. at 3.

107

Id. at 4.

108

Id.

109

Id. at 2.

28

81.

Goose Fest also contends that the IO misconceives the importance of the GAC

Beijing Communiqué, which identified over one hundred strings that should be subject toadditional safeguards.110 Although Goose Fest supports much of the GAC’s advice, it maintains
that it is ICANN—and not this Panel—who shall determine what policy response should begiven to the GAC’s position, and that the Beijing Communiqué should have no bearing on thepresent proceedings.111 Alternatively, Goose Fest explains, the GAC Beijing Communiquéshould not be considered as probative as the IO hopes, as it did not suggest that .health wasamong the particularly sensitive strings falling within the purview of a “strong presumption”
operating against applicants seeking to register such strings.112 In any event, Goose Fest noted,
ICANN will likely adopt any of the relevant safeguards proposed by the GAC through theregular course of the new gTLD process.113
82.

Goose Fest also addresses a comment the IO made in his Additional Written

Statement while taking issue with Goose Fest’s interpretation of the provisions of the AGB
relating to the grounds upon which an LPI objection may be granted.114 The comment appears to
discount the relevance of public comments made in relation to the AGB, which—according to
the IO—cannot replace the AGB. Goose Fest responds that the IO’s comment is misplaced,because although public comments are not substitutes for the text of the AGB, they provide

110

Id. at 4.

111

Id. at 5.

112

Id.

113

Id.

114

Id. at 6.

29

interpretive guidance that will “help clarify hard-to-define terms such as ‘morality’ and ‘publicorder.’”115
83.

Finally, Goose Fest explains that the alternative remedy sought by the IO poses a

problem, because granting it would be tantamount to providing the IO with veto power over thegTLD application.116 In Goose Fest’s view, sustaining the IO’s Objection on a conditional basis,
where the IO has explained only in vague generalities the conditions necessary for assuring
adequate protection for the .health gTLD and has not recognized the affirmative protections
Goose Fest proposed in its Application, is not an order that should be entertained by the Panel.117
V.

Findings of the Panel84.

ICANN has explicitly stated that the objector bears the burden of proof in any

dispute under Module 3 of the AGB.118 Thus, there is a presumption favoring Goose Fest’s
Application, and it is the IO who must demonstrate that “the applied-for gTLD string would becontrary to general principles of international law for morality and public order.”119 The Panelmust thus assess the Objection by considering whether the IO has satisfied his burden of showingthat Goose Fest’s Application to operate a .health gTLD registry would breach the standards set
out in Section 3.5.3 of the AGB.

115

Id.

116

Id.

117

Id. at 6-7.

118

See Procedure, Art. 20(c). See also ICANN, New gTLD Draft Applicant Guidebook Version 3 Public Comments
Summary and Analysis, at 67, http://archive.icann.org/en/topics/new-gtlds/summary-analysis-agv3-15feb10-en.pdf(“There is a presumption generally in favor of granting new gTLDs to applicants who can satisfy the requirementsfor obtaining a gTLD—and, hence, a corresponding burden upon a party that objects to the gTLD to show why thatgTLD should not be granted to the applicant.”).
119

AGB, Section 3.5.3.

30

85.

By way of introduction, the Panel acknowledges the existence of legitimate public

interest concerns inherent in any application for any new gTLD related to the subject of health.
The Panel also recognizes the importance of these concerns in the new gTLD application
process.120
86.

In particular, the Panel notes that the GAC has designated certain terms relating tohealth and fitness as “sensitive,” and thus deserving of additional safeguards beyond those
ICANN intends to apply to all new gTLDs.121 The Panel also notes that the World Health
Assembly has underscored the importance of global coordination with regard to electronic healthinformation and services, while emphasizing that “health-related global top-level domain names
in all languages, including ‘.health,’ should be operated in a way that protects public health.”122
Further, the Panel is mindful that the United Nations Committee on Economic, Social andCultural Rights has expressed the view that the obligations to protect the right to health “include,inter alia, the duties of States . . . to ensure that privatization of the health sector does notconstitute a threat to the availability, accessibility, acceptability and quality of health facilities,
goods and services.”123
120

See, e.g., ICANN GAC, GAC Communiqué – Beijing, People’s Republic of China, 11 Apr. 2013, Annex I(attached as Annex 1 to the IO’s Additional Written Statement) (identifying health and fitness related strings as
sensitive strings, which are “likely to invoke a level of implied trust from consumers” and are deserving ofadditional safeguards); 66th World Health Assembly Agenda item 17.5 Resolution on eHealth Standardization andInteroperability (27 May 2013) (attached as Annex 3 to the IO’s Additional Written Statement) (urging
collaboration between national health authorities and other health officials, ICANN GAC members, and others to“coordinate . . . positions toward the delegation, governance and operation of health-related global top-level domainnames in all languages, including ‘.health,’ in the interest of public health.”).
121

ICANN GAC, GAC Communiqué – Beijing, People’s Republic of China, 11 Apr. 2013, Annex I (attached as
Annex 1 to the IO’s Additional Written Statement).
122

66th World Health Assembly Agenda item 17.5 Resolution on eHealth Standardization and Interoperability (27May 2013) (attached as Annex 3 to the IO’s Additional Written Statement).

123

United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 14, The Right to theHighest Attainable Standard of Health (Art. 12 of the Covenant on Economic, Social and Cultural Rights), ¶ 35.
(cited in Objection, ¶ 20).

31

87.

The Panel further notes that various stakeholders have discussed the need forsafeguarding health-related gTLDs subsequent to Goose Fest’s submission of its Application.
For instance, a number of public comments were submitted with regard to Goose Fest’s
Application for the .health gTLD. In addition to these comments, the governments of France andMali submitted Governmental Advisory Committee (“GAC “) Early Warnings with regard to
Goose Fest’s Application for the .health gTLD.124
88.

Before turning to the merits of the IO’s Objection, the Panel will address Goose

Fest’s suggestion that the IO is somehow biased in favor of certain “health-related interests” sothat these allegations do not remain unaddressed in the record.125
89.

While claiming to “not suggest that [the IO] has engaged in any improper

conduct,” Goose Fest nonetheless suggests that the Panel “consider his bias when weighing the
Objection.”126 In support of this request, Jonathon Nevett, Executive Vice President of Donuts,
provided the Panel with documents which were said to suggest the existence of a professional
connection between the IO’s legal assistant and a consultant to the WHO.127 This consultant isalleged to have advocated on behalf of medical organizations in proceedings before the ICANN
At-Large Advisory Committee (“ALAC”).128 Goose Fest also points to IO’s curriculum vitae in
asserting that he has done some work for the WHO in the past.129
124

As ICANN explains, an Early Warning is a notice from a member or members of the ICANN GAC that an
application is seen as potentially sensitive or problematic by one or more governments; it is not a formal objection.
See ICANN, GAC Early Warning and Advice, http://newgtlds.icann.org/en/applicants/gac-early-warning (lastvisited 9 Sept. 2013).
125

Goose Fest Response at 6.

126

Id.

127

Id. See also id., Annex B (Declaration of Jonathon Nevett, ¶ 18).

128

Id., Annex B (Declaration of Jonathon Nevett, ¶ 18).

129

Goose Fest Response at 6.

32

90.

The Panel has no hesitation in dismissing Goose Fest’s allegations as unfounded,

if not plainly frivolous. As ICANN has explained, the IO “is a highly regarded professor andpractitioner of law and has represented governments as Counsel and Advocate in theInternational Court of Justice in many significant and well-known cases [who] is widely
published and holds several significant honors.”130 The Panel shares ICANN’s view.
A.

The Merits of the IO’s LPI Objectioni.

91.

The .health string is not in itself contrary to general principles ofinternational law for morality and public orderTo sustain the IO’s Objection, the Panel must determine that .health is an“applied-for gTLD string” that is “contrary to general principles of international law for morality
and public order.”131
92.

It is clear that under Section 3.5.3 of the AGB, an LPI Objection may be sustained

if the string itself—in other words, the terms constituting the applied-for .gTLD—is “contrary to
general principles of international law for morality and public order.” But it is just as clear to the
Panel that the generic term “health” is not, in and of itself, contrary to such generally accepted
legal norms. The IO has primarily conjectured that a .health gTLD registry, as operated by
Goose Fest, would not be adequately safeguarded or protective enough of human rights to health,but that changes nothing to the fact that word “health” is by no means inherently
objectionable.132
93.

As explained in the AGB, LPI Objections are designed, to weed out gTLD

applications where the gTLD string at issue is “contrary to general principles of international law
130

ICANN, Independent Objector for the New gTLD Program Selected, 14 May 2012,
http://www.icann.org/en/news/announcements/announcement-14may12-en.htm (last visited 2 October 2013).
131

See AGB, Section 3.5.3.

132

See discussion supra ¶¶ 49-56, 71-72.

33

for morality and public order.” Thus, the relevant principles must at the very least be similar to
the examples provided in the AGB, namely principles prohibiting: (i) the incitement to or
promotion of violent lawless action; (ii) the 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 recognized under principles ofinternational law; (iii) the incitement or promotion of child pornography or other sexual abuse ofchildren). For instance, publicly-available documents illustrate how ICANN clearly
contemplates that the LPI Objection process would be proper to prevent the creation of a gTLD
registry whose string contained “objectionable or racist” terms.133 Thus, to be contrary to suchgeneral principles of international law for morality and public order, the string at issue must be
as objectionable as words that would incite or promote senseless violence, discrimination, or
child pornography, or any similar words or terms.
94.

The proposition that the string itself must be severely objectionable to sustain an

LPI Objection is supported by ICANN’s analysis of public comments to the AGB.134 In its
analysis, ICANN noted that the fourth ground for an LPI Objection should be construed in lightof the first three grounds, because “panels considering morality and public order should havediscretion to consider gTLD strings that do not fit within one of the three specific categories but
are nonetheless contrary to generally accepted legal norms relating to morality and public orderto the same degree as the first three grounds”. ICANN added that “[a]pplications for such strings
133

See ICANN, New Generic Top-Level Domains: Frequently Asked Questions, available at
http://newgtlds.icann.org/en/applicants/customer-service/faqs/faqs-en. (“4.5 Will ICANN prevent the registration of
objectionable or racist extensions? Consistent with the policy advice on new gTLDs, all applied-for strings could be
subject to an objection-based process based on Limited Public Interest grounds. This process will be conducted by
the qualified DRSP utilizing standards drawing on provisions in a number of international treaties.”).
134

See ICANN, New gTLD Draft Applicant Guidebook – Version 2: Analysis of Public Comment 137-140 (2009),
available at http://archive.icann.org/en/topics/new-gtlds/agv2-analysis-public-comments-31may09-en.pdf (cited in
Goose Fest Response at 9).

34

may well be rare or non-existent.”135 Therefore, ICANN intended that the fourth ground belimited to violations of legal norms relating to morality and public order that would be similar to
those prohibiting anyone to incite or promote violent lawless action, discrimination, or childpornography or sexual abuse.136
95.

The Panel has no hesitation in finding that the string “health” is not objectionable

in and of itself. It is obvious to the Panel that the word “health” does not conflict with any
generally accepted legal norms relating to morality and public order of the same nature as thefirst three grounds ICANN listed in AGB Section 3.5.3.
96.

The Panel’s conclusion is consistent with the position adopted by the IO himself.

Indeed, the IO suggested in both his initial Objection137 and his Additional Written Statement138
that the operation of a .health gTLD registry should be allowed, provided that such a registry was
subject to proper oversight and administration. Specifically, the IO took the position that theoperation of a .health gTLD registry would comply with principles of international law if it gave
“due consideration to the fundamental rights and related obligations” attendant to the use of the.health string.139 By highlighting that the operation of a .health gTLD—as opposed to the mere135

Id. at 139.

136

See id. This view is supported elsewhere in ICANN’s publicly-available materials relating to the new gTLD
process. See ICANN, New gTLD Program Explanatory Memorandum: Morality and Public Order Objection
Considerations in New gTLDs, Oct. 29, 2008, available at http://archive.icann.org/en/topics/new-gtlds/moralitypublic-order-draft-29oct08-en.pdf (“[S]ome have proposed that panelists be provided significant discretion to findthat other categories might also reach to the level of violating generally accepted legal norms of morality and publicorder.”).
137

Id. at ¶ 32 (suggesting a delay in the review of .health applications “in order to allow for consultations with theglobal health community which may lead to a satisfactory structure of a .Health TLD.”) (emphasis supplied). See
also id. (requesting as alternative relief that the Panel postpone the creation of the .health registry until the Applicant
provides “solutions” for the IO’s objections).
138

IO’s Additional Written Statement at ¶¶ 6-7.

139

See Objection at ¶ 31 (“[T]he present Application does not meet the standards that have to be applied for a . . .
highly sensitive TLD.”).

35

existence of the gTLD—is at the heart of its LPI Objection, the IO conceded that the string
itself—“.health”— is not contrary to the principles of international law contemplated in Section
3.5.3 of the AGB.
ii.

97.

The manner in which Goose Fest proposes to operate a .healthgTLD registry does not conflict with general principles ofinternational law for morality and public order.

The IO concedes that, in appropriate circumstances, the operation of a .healthgTLD registry would not be contrary to generally accepted legal norms of morality and publicorder that are recognized under principles of international law. But he contends that the mannerin which Goose Fest intends to operate a .health registry falls short of requirements that allegedly
derive from the right to health and, more specifically, the right to health-related information.140
For example, the IO states that “the question is not, or at least not only – and usually notprimarily – whether the word or the term would be objectionable, but whether the proposed
string and its intended operation may be objectionable from the perspective of ‘general principles
of international law for morality and public order.’”141 Implicit in the IO’s argument is the
proposition that these alleged flaws in Goose Fest’s Application constitute grounds upon whichan LPI Objection may be sustained.
98.

Goose Fest disputes this last point. In its Additional Written Statement, it

contends that, rather than objecting on the basis of the .health string itself as permitted in the140

See Objection at ¶ 25 (“[the IO] is of the view that any Applicant applying for a .Health TLD should demonstrateawareness of its duty to see to it that this TLD is organized, set up and managed in such a way that the right to healthwith all of the implications discussed above . . . is fully respected and, consequently, should demonstrate that thisduty will be effectively and continuously implemented. In addition, the Applicant should demonstrate how, given
the public interest at stake, the policies and decision-making of the Applicant will be properly connected to the
public authorities . . . that are under a legal obligation to respect, protect and fulfil [sic] the right to health.”). See
also id. at 13 (noting the need for “reliability and trustworthiness” in a .Health gTLD); id. at pg. 14 (supporting theWHO’s view of the need for “a satisfactory structure of a .Health TLD,” and requesting that the objection besustained “as long as the Applicant has not provided solutions” to address its purported lack of recognition of rights
in health).
141

IO’s Additional Written Statement, ¶ 6.

36

AGB, the IO attempts to impose additional hurdles and safeguards in a way that is inconsistent
with, and represents a circumvention of, the gTLD application process ICANN carefully
designed.142
99.

According to the AGB, the Panel’s task is to “conduct its analysis on the basis of

the applied-for gTLD string itself,” but it also is stated that the Panel “may, if needed, use asadditional context the intended purpose of the TLD as stated in the application.”143 The AGB
provides no details regarding the circumstances under which a panel should accept to take such“intended purpose” into consideration. Nor does it specify what importance ought to be given to
the “intended purpose” while assessing the merits of an LPI objection, or whether this “intended
purpose” may form the sole basis of LPI objection. That said, the Panel need not decide thisissues since it is not necessary to dispose of the IO’s Objection.
100.

Indeed, even taking additional context provided by the IO into consideration, his

Objection still fails on the merits. Although the IO has argued that the right to health and theright to accurate health-related information are “specific principle[s] of international law asreflected in relevant international instruments of law,” he has failed to demonstrate convincinglythat the operation of a .health gTLD registry by Goose Fest would be contrary to such allegedprinciples of international law unless certain safeguards were in place.
101.

A full discussion of whether the rights to health and to health-related information

are fundamental human rights and “specific principle[s] of international law” for the purpose of
Section 3.5.3 of the AGB, as contended by the IO, is unnecessary. For the purpose of reviewing
the IO’s LPI Objection, these assertions may be assumed to be correct. Even in that case,142

See Goose Fest’s Additional Written Statement at 7.

143

See AGB, Section 3.5.3(emphasis added).

37however, the IO has not met his burden of demonstrating that the .health gTLD, as applied for by
Goose Fest, is “contrary to specific principles of international law.”144 The Panel finds that theterm “health” is not, even when looking to the “additional context [of] the intended purpose of
the TLD,” equivalent to the per se offensive terms suggested by the AGB as deserving of an LPI
Objection.145 The Panel finds that the term “health” is not, even when looking to the “additional
context [of] the intended purpose of the TLD,” equivalent to the per se offensive terms suggestedby the AGB as deserving of an LPI Objection.146
102.

As mentioned above, the IO’s key contention is that the alleged right to health-related information requires that “any Applicant applying for a .Health TLD should demonstrateawareness of its duty to see to it that this TLD is organized, set up and managed in such a waythat the right to health with all of the implications discussed above . . . is fully respected and,
consequently, should demonstrate that this duty will be effectively and continuously
implemented” and that “the Applicant should demonstrate how, given the public interest at stake,the policies and decision-making of the Applicant will be properly connected to the publicauthorities . . . that are under a legal obligation to respect, protect and fulfil the right tohealth.”147 The Panel does not find the IO’s view convincing: even if an applicant failed to meet
any or all of the IO’s suggested benchmarks for a .health registry operator, the Panel would still
not be convinced that the gTLD string is contrary to specific principles of international law for
the purpose of Section 3.5.3 of the AGB.

144

See id.

145

See AGB, Section 3.5.3.

146

See id.

147

Objection at ¶ 25.

38

103.

The IO predicates his Objection on language found in the International Covenant

on Economic, Social and Cultural Rights and the Universal Declaration of Human Rights, withsecondary citations to statements promulgated by the WHO and the UN Committee on
Economic, Social and Cultural Rights and decisions by regional Human Rights Courts (e.g., theEuropean Court of Human Rights). Even assuming that there is a generally accepted right tohealth, it is nonetheless unclear to the Panel how the sources invoked by the IO support the
proposition that access to accurate health information is a “specific principle of international law
as reflected in international instruments of law.” Furthermore—and crucially—none of these
instruments provide any support for the IO’s argument that the operation of .health gTLD
registry by a private entity would inhibit or impair the access to accurate health information
unless it was done under the conditions envisaged by the IO. In other words, the IO fails toprovide any convincing explanation as to why the Panel should infer from the broad statements
regarding health found in these instruments that it would be contrary to specific principles ofinternational law for a private entity like Goose Fest to operate a .health gTLD registry unlesscertain safeguards were in place.
104.

The Panel considered additional sources beyond those cited to by the IO—as is

explicitly recommended by ICANN148—in evaluating the LPI Objection. ICANN provides in
the AGB a non-exhaustive list of international legal documents that may serve as the basis for an
LPI Objection.149 These provisions simply add to, but do not substantively alter, the IO’s
position with regard to the principles of international law relating to health.

148

See AGB, Section 3.5.3.

149

See discussion supra, ¶¶ 40-41.

39

105.

The IO thus fails to connect the alleged right to health-related information to his

key assertion that Goose Fest could only validly operate a .health gTLD string under theconditions envisaged by the IO. No explanation was provided as to why the Panel should soconceive the scope of the alleged right to health-related information, and no sources supporting
the IO’s key assertion—even if only indirectly—were provided to the Panel. As the IO bears theburden of proof, his LPI Objection must be rejected.
106.

To be clear, the Panel wishes to underscore that none of the preceding points canbe taken to suggest that the string “health” is, in and of itself, objectionable as contrary to
specific principles of international law for the purpose of Section 3.5.3 of the AGB. As
mentioned earlier, the string “health” is itself wholly inoffensive and, even viewed within thecontext of Goose Fest’s Application, the Panel does not find that the applied-for string violates
such principles of international law.
107.

Finally, the Panel notes that ICANN recognizes the right to exercise the freedomof expression, and suggests that the exercise of this right should be limited only in instanceswhere free expression would result in a string that “may be considered contrary to generally
accepted legal norms . . . that are recognized under principles of international law.”150
B.

The Alternative Remedy Sought by the IO

108.

The IO requests, as an “alternative” remedy, that the Panel “hold that the present

objection is valid as long as the Applicant has not provided solutions for the serious objections
raised above.”151 Essentially, the IO is asking the Panel to sustain the Objection until such point
as Goose Fest makes the public policy commitments requested by the IO. Given the Panel’s

150

AGB, Section 3.5.3.

151

Objection, at page 15.

40

finding above that the manner in which Goose Fest proposes to operate a .health gTLD registry
does not conflict with general principles of international law for morality and public order, the
IO’s alternative request becomes moot. The Panel nevertheless will briefly explain why thealternative relief sought by the IO would be outside its powers.
109.

First, the Panel is limited under Article 21 of the Procedure to ruling on the meritsof the objection. The AGB, Attachment to Module 3, Article 21(d) states that “[t]he remedies
available to an Applicant or an Objector pursuant to any proceedings before a Panel shall belimited to the success or dismissal of an Objection and to [fees determinations].” Nothing in the
AGB, Procedure, or Rules suggests that the Panel could or should set conditions necessary forsatisfying public policy concerns in gTLD applications while carrying out its task of evaluating
the merits of the LPI Objection. To entertain such a proposal would circumvent the procedural
reviews and safeguards ICANN established in the AGB to ensure that new gTLD registry
operators would have the technical, institutional, and organizational means to operate by the endof 2013. A determination of the Panel that dictated restrictions on the use of an applied-for
gTLD would exceed the Panel’s authority under the Procedure and would go beyond the role of
the Panel contemplated by ICANN.
110.

Second, the Panel’s mission is not to implement safeguards on the operation of agTLD registry; such safeguards are implemented by ICANN. In light of the safeguards
contemplated by ICANN with respect to the new gTLD process—including input from the GAC
and other authorities in the development of the final new gTLD Registry Agreements (“Registry
Agreements”)152—the IO’s public policy argument concerning the operation of a .health gTLD
registry is rendered much less effective. As detailed above, the Panel is mindful of the legitimate
152

See, e.g., ICANN, NGPC [New gTLD Program Committee] Progress on Addressing GAC Beijing Advice on
New gTLDs, 27 June 2013, https://www.icann.org/en/news/announcements/announcement-27jun13-en.htm.

41

public interest concerns inherent in the Application for any new gTLD that is health-related, andtheir importance in the new gTLD application process.153 However, the Panel recognizes that
ICANN can and will impose several layers of responsibilities, including intellectual property
safeguards and public policy considerations, on the selected registry operator.154 Thus, there isno sufficient public policy argument that would satisfy the IO’s demands, while also upholding
free speech and ensuring that the ICANN gTLD application process continues in a manner that
respects the process ICANN established for developing new gTLDs, in which there is apredisposition towards new domain names.
C.

Costs

111.

Article 21(d) of the Procedure states that “[t]he remedies available to an Applicant

or an Objector pursuant to any proceeding before a Panel shall be limited to the success or
dismissal of an Objection and to the refund by the DRSP to the prevailing party, as determinedby the Panel in its Expert Determination, of its advance payment(s) of Costs pursuant to Article
14(e) of this Procedure and any relevant provisions of the applicable DRSP Rules.”155
112.

Article 14(e) of the Procedure states: “[u]pon the termination of the proceedings,

after the Panel has rendered its Expert Determination, the DRSP shall refund to the prevailingparty, as determined by the Panel, its advance payment(s) of Costs.”156

153

See discussion supra at ¶¶ 85-87.

154

Note also that public sources illustrate how ICANN has enforced its Registry Agreements and attempted toexercise effective control over registries that fail to honor the Registry Agreements signed with ICANN. ICANN has
asserted its ability to dictate the terms of registry maintenance, including the process by which names are assigned.
See Letter from John O. Jeffrey to Brian Johnson and Ray Fassett, Employ Media, LLC, 27 Feb. 2011, available at
http://icann.org/en/correspondence/burnette-to-johnson-fassett-27feb11-en.pdf (regarding administration of the .Jobs
gTLD).
155

Procedure, Art. 21(d).

156

Id., Art. 14(e).

42

113.

Further to the Centre’s 2 August 2013 correspondence with the Panel and theParties, Goose Fest made a payment of the estimated costs of these proceedings. In accordancewith Articles 14(e) and 21(d) of the Procedure, the advance payment by Goose Fest is to berefunded.
VI.

Determination of the Panel114.

On the basis of the foregoing and in accordance with Article 21(d) of theProcedure, the Panel makes the following determination:i.

The IO’s LPI Objection against Goose Fest, LLC’s Application is dismissed.

ii.

The Applicant Goose Fest, LLC prevails.

iii.

The Applicant shall be refunded its advance payment of costs made under
Article 21(g) of the Procedure by the Centre.

43

Dr. Maxi C. Scherer
Co-Expert

Prof. Frédéric Bachand
Co-Expert

Dr. Stanimir A. Alexandrov
Chair of the Expert Panel
Date: 12/16/201344