THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/390/ICANN/7

THE INTERNATIONAL LESBIAN GAY BISEXUAL TRANS AND INTERSEXASSOCIATION(BELGIUM)
vs/AFFILIAS LIMITED(IRELAND)This document is an original of the Expert Determination rendered in conformity with theNew gTLD Dispute Resolution Procedure as provided in Module 3 of the gTLD Applicant
Guidebook from ICANN and the ICC Rules for Expertise.

EXP/390/ICANN/7

THE INTERNATIONAL LESBIAN GAY BISEXUAL TRANS AND INTERSEXASSOCIATION (BELGIUM)
vs.
AFILIAS LIMITED (IRELAND)

Expert Determination

1Objector
The International Lesbian Gay Bisexual Trans and Intersex Association
Mr. Renato Sabbadini
17 Rue de la Charité
1210 Brussels
Belgium
renato@ilga.org
Objector's Representative
International Gay & Lesbian Travel Association
Mr. Clark Massad
1201 NE 26th Street, Suite 103
Fort Lauderdale, Florida 33505
USA
icann@iglta.org
ApplicantAfilias Limited
Mr. John Kane
2 La Touche House, IFSC
DublinIrelandjkane@afilias.info
Applicant's Representative
Hogan Lovells (Paris) LLP
Mr. David Taylor
17, Avenue Matignon
75008 Paris
Francedomaindisputes@hoganlovells.com
Expert Panel
Professor Dr. Bernhard Schlink
Humboldt-Universität zu Berlin, Juristische Fakultät
Unter den Linden 6
10099 Berlin
Germanybernhard.schlink@rz.hu-berlin.de2

Table of Contents
Procedure4

Summary of Parties' Positions

4

Findings

6Decision83

Procedure
1. On 12 March 2013, The International Lesbian Gay Bisexual Trans and Intersex Association("ILGA"), represented by the International Gay & Lesbian Travel Association ("IGLTA"),
filed a Community Objection against the application by Afilias Limited ("Afilias") for thestring .LGBT. On 14 May 2013, Afilias filed its response. On 7 June 2013, I, Professor Dr.
Bernhard Schlink, was appointed by the Chairman of the Standing Committee of theInternational Centre for Expertise ("Centre") of the International Chamber of Commerce("ICC) as Expert in this matter.
2. On 3 July 2013, the Centre confirmed the full constitution of the Expert Panel, transferred
the file to me and invited me to proceed with this matter. On 2 August 2013, I informed theparties that I had received the file and did not intend to invite additional submissions and didnot consider holding a hearing. The parties did not submit any further submissions orstatements nor did they request to be granted leave to submit additional submissions.
3. I proceeded with this matter in accordance with the Rules for Expertise of the ICC("Rules"), supplemented by the ICC Practice Note on the Administration of Cases ("ICCPractice Note") under the Attachment to Module 3 of the gTLD Applicant Guidebook, New
gTLD Dispute Resolution Procedure ("Procedure") of the gTLD Applicant Guidebook("Guidebook") and Appendix III to the Rules.
4. The language of all submissions was English. All communications by the parties, theExpert Panel and the Centre were submitted electronically (Article 6(a) of the Procedure).
5. The draft Expert Determination was rendered to the Centre on 13 August 2013, i.e. within
45 days after receipt of the file transmitted by the Centre on 3 July 2013.
Summary of Parties' Positions
Objector's Position
6. ILGA presents itself as an established institution that has an ongoing relationship with theclearly delineated gay community, which ILGA writes capitalized as Gay Community. To
demonstrate that it is an established institution that has an ongoing relationship with the gaycommunity, ILGA asserts that it is the only worldwide federation of more than 1000 lesbian,gay, bisexual, transgender and intersex national and local organizations in over 100 nations
and on all five continents; that it has existed since 1978; that it gathers every two years in aworld conference; that its annual reports cover its own activities and also state-sponsoredhomophobia; and that it enjoys consultative status with the Economic and Social Council of
the United Nations. To demonstrate that the gay community is a clearly delineated community,
ILGA describes how a sense of community emerged among gay individuals in the early 20thcentury; how the Stonewall events in New York in 1969 triggered gay individuals around theworld to experience themselves as part of a community; how since then more and more gay
organizations sprout and provide the gay community with a network of cooperation, support,and services; and how the annual gay pride march demonstrates the unity, vitality, andstrength of the gay community, which includes gay, lesbian, bisexual, transgender, and other4

individuals whose gender identities and sexual orientations fall outside of the societal norms
for heterosexual behavior.
7. ILGA claims substantial opposition from a significant part of the gay community to which
the string .LGBT, using the acronym that stands for lesbian, gay, bisexual, and transgender,
may be targeted. ILGA describes how the gay community came to understand that it needs avoice inside the new generic top-level domain ("gTLD") program, how it took the lead on thecommunity application by dotgay llc ("dotgay") for the string .gay, how this application has
the support from ILGA and more than 150 gay community organizations, and that these sameorganizations also object to the application by Afilias for the string .LGBT. The gay
community did not, through ILGA or through an organisation closely related like dotgay,
initiate a community application for the string .LGBT. Still, in ILGA's eyes, the string .LGBTand the string .gay for which dotgay has applied are identical, in so far as they target one andthe same community, using names by which this community is known.
8. ILGA argues that Afilias's operation of the string .LGBT would damage the gay
community. According to ILGA, Afilias presumes that the string .LGBT would bring together
the people living the gay lifestyle into a community – as if being gay were merely a lifestyleand not the expression of the essential nature of a gay person, and as if the gay community did
not already exist. According to ILGA, the operation of the string .LGBT would usurp andexploit the name of the abused minority community of lesbian, gay, bisexual, and transgenderpeople and use it to generate profits that would not benefit the community. The operation ofthe string .LGBT would make this gTLD available to all registrants for any purpose and any
use with no restriction, thereby allowing for abuses of the domain name that might cause thegay community harm, for example from registrants masquerading as members of thecommunity who in fact were anti-gay activists intending to to use the registration for anti-gay
purposes.
9. ILGA sees the main damage in the loss of opportunities for the gay community with theoperation of the string .LGBT by Afilias. The operation of the string .LGBT under a non-gay
community leadership and responsibility, and solely for profit, would not give the gay
community the safety that it could enjoy from a gTLD under gay community leadership andresponsibility. Registrants of the string .LGBT could not rely on other registrants of thestring .LGBT being reliably gay, and people who approach registrants of the string .LGBT
could not rely upon finding trustworthy gay businesses and enterprises, gay community
programs and services. In addition, the operation of the string .LGBT under a non-gay
community leadership and responsibility and solely for profit would not generate the funds
that the gay community needs to support its programs and services – something that theoperation of the string .gay by dotgay would do, because dotgay has committed to give asubstantial share of its profits back to the gay community.
10. In its objection, ILGA requests that Afilias "be forced to withdraw its application".
Pursuant to Article 21 (d) of the Procedure, the Panel in its Expert Determination decides
whether an objection is successful or dismissed; it cannot force an applicant to withdraw itsapplication. Thus, ILGA's request that Afilias be forced to withdraw does not fall into thescope of the present proceedings.
Applicant's Position
11. Afilias responds that the operation of the string .LGBT is not meant to create a community,
but rather, to provide an online environment whereby lesbian, gay, bisexual, and transgender
5

("LGBT") individuals, organisations, and companies can interact under a new secure domainname space. It further responds that operating the string .LGBT cannot exploit the name of
the gay community, because the objector itself refers to this community again and again as
gay and not as LGBT. It also points to the huge marketing trend of more and more businesses
targeting the "gay dollar", the financial and monetary potential of the LGBT community;
these businesses, even without themselves belonging to the LGBT community, should be able
to use the string .LGBT to present themselves as having this special targeting focus. As to thedamages that ILGA foresees, Afilias points to its robust policy and swift actions to remove
abusive domain name registrations from its other domains and to the speculative nature of thedamages envisioned by ILGA. As to the lost opportunities that ILGA claims, Afilias claims
the freedom not to protect and to serve the gay community but rather to pursue a business.
12. Afilias suspects that ILGA's real issue with Afililas's application for the string .LGBT isthat it is likely to provide competition with dotgay's application for the string .gay which is
supported by ILGA and which tries to become the only gTLD on the Internet to serve the gay
community.
Findings
13. ILGA's standing has not been doubted by Afilias and is not to be doubted. To havestanding the objector has to be an established institution associated with a clearly delineatedcommunity (Module 3.2.2.4 of the Guidebook), i.e. with a group that is publicly recognized as
a community at a local and/or global level and has formal boundaries that enable adetermination of what persons or entities form the community (Module 3.5.4 of the
Guidebook, first test). The gay community is a clearly delineated community. It is publicly
recognized as such in the language of the media, scholarship, and common usage, formed bymillions of individuals whose gender identities and sexual orientations are outside of thesocietal norms for heterosexual behavior and who, whether they are more or whether they areless organized, share the awareness of their special status. During the last century, the gay
community has grown out of individuals with that special awareness into a community in its
own right and is now a worldwide presence.
14. ILGA is a globally recognized institution, existing since 1978, organized around the causeof the gay community, fighting for the freedom to live and express one's gender identity andsexual orientation outside of the societal norms for heterosexual behavior without any
discrimination. ILGA existed much prior to the new gTLD proceedings and its purpose is far
broader than merely taking the role of objector in the present proceedings.
15. ILGA has also proven substantial opposition against Afilias's application for thestring .LGBT (Module 3.5.4 of the Guidebook, second test). It has named more than 150 gay
community organizations that support the community application by dotgay for the string .gay
and also object to the application by Afilias for the string .LGBT.
16. ILGA has used less care to prove a strong association between the string .LGBT and thegay community it represents (Module 3.5.4 of the Guidebook, third test). As Afilias points out
in its response, ILGA itself refers again and again to the gay community and not to the lesbian,gay, bisexual, and transgender community. It was not required to prove the strong association
with more care; it is common knowledge that the term gay community refers to this wider
community, wider even than a lesbian, gay, bisexual, and transgender community, and that
LGBT is one of the different abbreviations used to characterize it.
617. For an objection to be successful, the objector has to prove that the application creates alikelihood of material detriment to the rights or legitimate interests of a significant portion of
the community to which the string may be explicitly or implicitly targeted; Module 3.5.4 of
the Guidebook, fourth test, mentions as detrimental in particular damage to the reputation of
the community, a failure of the applicant to act in accordance with the interests of thecommunity, interference with the core activities of the community, impairment of thecommunity's dependency on the Domain Name System ("DNS") for its core activities, andeconomic damage to the community.
18. ILGA has not proven that Afilias's application creates a likelihood of material detriment
to the rights of a significant portion of the gay community, nor has ILGA attempted to provethis. Instead, ILGA has attempted to prove a likelihood of material detriment to the legitimate
interests of the gay community. It has argued that the gay community needs its own gTLD,
that is designed to serve the gay community and to operate accordingly. It should be a safegTLD where registrants and users can rely on the fact that other registrants who present
themselves as gay and as providers of programs, services, funds, and support for gay people
are actually gay and trustworthy. It should not be operated only for profit, not even foremost
for profit, but with the purpose of giving a fair share of the revenue back to the gay
community for its needs and activities. ILGA also fears an usurpation and exploitation of thename of the gay community, should Afilias operate the string .LGBT. But, while not negatingthat the gay community is also know by the name LGBT, ILGA emphasises that "the Gay
Community is of course known by the name gay". It insists on the name gay as the one true
name of the gay community, however else the community may be called and known
otherwise, as there are indeed many abbreviations that can be formed and used to designate
the gay community, and new abbreviations keep emerging.
19. The interest in operating its own gTLD and the interest in not having its name usurped andexploited are legitimate interests of the gay community. But the names gay and LGBT aredifferent. It is not to be seen how Afilias's operation of the string .LGBT could be a detriment
to the gay community's interest in operating its own gTLD under the name gay. Nor is it to beseen how Afilias's use of the name LGBT could be an usurpation and exploitation of the namegay that ILGA as the representative of the gay community regards to be truly the name of thegay community.
20. It may happen that among the registrants of the string .LGBT will be non-gay and evenanti-gay registrants who try to use the registration for anti-gay purposes. But not all namesthat can be formed and used and may emerge to designate the gay community and not allcommercial utilizations of them can be protected completely against abuse. Occasional abuse
is not to be regarded as damage to the reputation of the gay community. Neither does thepossibility of occasional abuse mean that Afilias would not operate the string .LGBT inaccordance with the interests of the gay community. It does not interfere with the gay
community's core activities, nor does it cause economic damage to the gay community.
21. In other words, the gay community's legitimate interest - to operate its own gTLD, not tohave its name usurped and exploited, and not to have a gay-related gTLD abused - cannot
legitimize an exclusive claim to all names that can be formed and used and may emerge todesignate the gay community nor to the gTLDs with the corresponding names. In a freesociety and on a free market, a community that represents the legitimate interests of its
members cannot exclude competition to represent it, to serve it, to target its members as

7

customers and to do business with them. There is no legal or moral or social principle thatwould support this kind of exclusivity.
22. The legitimate interests of the gay community can only legitimize a claim to a gTLD thatis exclusively linked to the gay community. A community that represents the legitimate
interests of its members can claim a safe and secure position in the society and on the market,
and this holds particularly for a community that represents the legitimate interests of aminority. Its claim to a safe and secure position in the society and on the market includes asafe and secure position in the internet. Therefore, while the gay community cannot exclude
competition, it could file and has filed its own application for a gTLD that is designed to serve
the gay community and to operate accordingly: dotgay's community application for thestring .gay.
23. ILGA has shown a likelihood of material detriment to the legitimate interests of the gay
community if there is no gTLD designed to serve the gay community and to operate underappropriate principles that grant safety and financial rewards for the gay community. ILGA
has not proven that other gTLDs with names that can also be targeted to the gay community
are likely to cause material detriment to the legitimate interests of the gay community or asignificant portion thereof. They can only cause a certain amount of competition, and Afilias
has convincingly argued that there is a legitimate interest in targeting the gay community
without belonging to it or without belonging to the portion of it that supports the string .gay.
A coexistence of an "official" gTLD of the gay community and another "unofficial" gTLD is
no material detriment to the legitimate interests of the gay community.
Decision
For all the above reasons and according to Article 21 (d) of the Procedure, I hereby render thefollowing Expert Determination:
1. ILGA's objection fails and is dismissed.
2. The Applicant Afilias prevails.
3. Afilias's advance payment of costs shall be refunded by the Centre to Afilias.

16 November 2013

Prof. Dr. Bernhard Schlink, Expert89