THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/432/ICANN/49

THE FINANCIAL SERVICES ROUNDTABLE
(USA)
vs/
AUBURN PARK, LLC(USA)(Consolidated with case No. EXP/507/ICANN/124
AMERICAN INSURANCE ASSOCIATION (USA) vs/
AUBURN PARK, 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.

TABLE OF CONTENTS
List of Abbreviations
1. INTRODUCTION…………………………………………….……………………….3
2. PROCEDURAL BACKGROUND..…………………………………………………...4
3. REQUIREMENTS APPLICABLE TO THE OBJECTION..…………………………7
A. Applicable rules
B. Requirements and standards
4. SUMMARY OF THE OBJECTION..………………………………………….…….12
A. Standing to object
B. Requirements on the merits
C. Additional aspects
5. SUMMARY OF APPLICANT’S RESPONSE..……………………………..………16
A. Lack of standing
B. Requirements on the merits
C. Additional aspects
6. FINDINGS OF THE EXPERT……………………………………………………....18
A. Objector’s standing to object
B. Test 1: Clearly delineated community
C. Test 2: Substantial opposition by the community
D. Test 3: Strong association between community and string
E. Test 4: Likelihood of material detriment
Additional issues
7. CONCLUSION………………………………………………………………….…..38
8. COSTS……………………………………………………………………………....38
DECISION ……………………………………………………………………………...39

1

List of Abbreviations

GAC Early Warning
GFIA
gTLD
Guidebook
ICANN
ICANN Final Report

Additional Submission
Appendix III to the Rules, Schedule of expertise costs for proceedings under theProcedure
Auburn Park LLC
Appl. I.D. 1-1512-20834 <.insurance>
Attachment to Module 3 of the gTLD Applicant Guidebook
GAC Communiqué - BeijingInternational Centre for ExpertiseCommunity Priority Evaluation procedure
Parent company of Applicant, Donuts Inc.
Donuts Protected Marks List
GAC Communiqué - Durban
Expert Determination
ICANN's Government Advisory Committee
Early warning issued by the GAC at the request of the Australian Government on
20 November 2012
Global Federation of Insurance Associations
generic Top Level Domain
gTLD Applicant Guidebook
Internet Corporation for Assigned Names and Numbers
Final Report -ICANN Generic Names Supporting Organization -August 8, 2007

Note
Objection
Objector
PIC

ICC Practice Note on the Administration of Cases under the New gTLD Dispute
Resolution Procedure
Community Objection filed by the Objector
The Financial Services Roundtable
Donuts Public Interest Commitment

Add.Sub.
Appendix III
ApplicantApplication
Attachment
Beijing GAC Advice
CentreCPE
DonutsDPML
Durban GAC Advice
Expert Determination
GAC

Procedure
Proceedings
Requirements
Rules
Three Additional Safeguards

URDP

Module 3 of gTLD Applicant Guidebook
Exp. 432/ICANN/49 (c. Exp. 507/ICANN/124)
Requirements to be met for an Objection to prevail as detailed in paragraph 35
Rules for Expertise of the ICC
Additional safeguards numbered 6,7, and 8 in the Beijing GAC Advice
Uniform Domain-Name Dispute-Resolution Policy (UDRP) is a processestablished by ICANN for the resolution of disputes regarding the registration ofinternet domain names2

1.

INTRODUCTION

1.

This expert determination [“Expert Determination”] is issued pursuant to theproceedings being held before the International Centre for Expertise [“Centre”] of theInternational Chamber of Commerce Centre designated as EXP/432/ICANN/49[“Proceedings”]1.

2.

The Proceedings deal with the Community Objection [“Objection”] filed by the
Financial Services Roundtable [“Objector”] to the application registered by Auburn
Park, LLC [“Applicant”] before the Internet Corporation for Assigned Names andNumbers [“ICANN”] for the new generic top level domain [“gTLD”] <.insurance>(Appl. I.D. 1-1512-20834) [“Application”].

3.

Objector – The Financial Services Roundtable – is a “leading advocate on behalf of thefinancial services community, including insurance members”2. Objector’s address andrepresentative:
Mr. Richard Whiting
Executive Director and General Counsel
1001 Pennsylvania Avenue, NW Suite 500
South Washington D.C. 20004 USA
Ph: (+ 1) 202.589.2413
rich@fsround.org

4.

Applicant – Auburn Park, LLC – is a company formed to acquire and operate generic
top level domains under ICANN’s new gTLD program3. Applicant’s address:
Mr. Daniel Schindler
Auburn Park, LLC
155 108th Avenue NE, Suite 510
Bellevue, WA 98004, USA
Ph: (+ 1) 424.254.8537
auburnpark@donuts.co
The parent company of Applicant is Donuts Inc. [“Donuts”].

5.

Applicant is represented by:John M. Genga, Esq.
Don C. Moody, Esq.
The IP & Technology Legal Group, P.C.
Dba New gTLD Disputes
15260 Ventura Blvd, Suite 1810

1This case is consolidated with EXP/507/ICANN/124. However, each of the Objections is being issued aseparate Expert Determination.
2
Objection p. 5.
3
Declaration of J. Nevett, Annex B to Response, at 3.

3

Sherman Oaks, CA 91403, USA
Ph: (+1) 888-402-7706; (+1) 818-444-4582
john@newgtlddisputes.com
don@newgtlddisputes.com
6.

The Expert is:
Mr. Juan Fernández-Armesto
Armesto & Asociados
General Pardiñas 102
Madrid 28006 – Spain
Ph: (+ 34) 91-562.16.25
jfa@jfarmesto.com

2.
7.

PROCEDURAL BACKGROUND

On 13 June 2012 Applicant filed with ICANN an application requesting the gTLD<.insurance.
GAC Early Warning4

8.

At the request of the Australian Government, on 20 November 2012, ICANN’s
Government Advisory Committee [“GAC”] issued an early warning [“GAC Early
Warning”] stating that “the string (.insurance) is linked to a regulated market sector,
and Auburn Park, LLC does not appear to have proposed sufficient mechanisms tominimise potential consumer harm” and suggesting that “Applicant should detailappropriate mechanisms to mitigate potential misuse and minimize potential consumerharm”5.

9.

Applicant replied to the GAC Early Warning by letter, concluding that “[W]e believe
we have more than sufficient protections in place to address the needs of rights holders
and insulate end-users against poor experiences, and we intend to proceed with ourapplications”6.

4

Both the GAC Early Warning and the Beijing GAC Advice will be analysed in detail infra (see paragraphs 154
et seq.).

5
The GAC Early Warning detailed as reason/rationale for the warning the following: “The proposed string (.insurance) is
linked to a restricted or regulated market sector. This market sector is characterized by the ability to complete entire
transactions online, without the need for any face-to-face interaction. In this context, Auburn Park, LLC does not appear tohave proposed sufficient protections to address the potential for misuse. Without additional protections, this proposed TLD
could result in misuse and consumer harm. Early warnings provide a mechanism to initiate a discussion between agovernment and an applicant on particular issues or questions. It is intended that a constructive dialogue through thisprocess will assist applicants to better understand the concerns of governments, and help governments to better understandthe planned operation of proposed gTLDs.”

6

Donuts’ response to the GAC Early Warning, p. 6.

4

Community Objection10.

On 13 March 2013 Objector filed an Objection before ICANN, which gave rise to thepresent proceedings.
Beijing GAC Advice11.

On 11 April 2013 the GAC issued the GAC Communiqué – Beijing [“Beijing GAC
Advice”], where it stated that “to reinforce existing processes for raising and addressing
concerns the GAC is providing safeguard advice to apply to broad categories of strings(see Annex I)”.

12.

In Annex I to the Beijing GAC Advice the GAC advised the ICANN Board that:“Strings that are linked to regulated or professional sectors should operate in a waythat is consistent with applicable laws. These strings are likely to invoke a level of
implied trust from consumers, and carry higher levels of risk associated with
consumer harm… [I]n the current round the GAC has identified the following nonexhaustive list of strings that the above safeguards should apply to: …….

Financial: ……insurance”.

13.

The GAC further advised the ICANN Board in Annex I that:“1. In addition, some of the above strings may require further targetedsafeguards, to address specific risks, and to bring registry policies in line witharrangements in place off line. In particular, a limited subset of the above strings
are associated with market sectors which have clear and/or regulated entry
requirements (such as: financial, gambling….) in multiple jurisdictions, and the
additional safeguards below should apply to some of the strings in those sectors:[…]
6.
At the time of registration, the registry operator must verify and validate theregistrants’ authorizations, charters, licenses and/or other related credentials forparticipation in that sector.
7.
In case of doubt with regard to the authenticity of licenses or credentials,
Registry Operators should consult with relevant national supervisory authorities, ortheir equivalents.
8
The registry operator must conduct periodic post-registration checks toensure registrant’s validity and compliance with the above requirements in order toensure they continue to conform to appropriate regulations and licensing
requirements and generally conduct their activities in the interests of the consumers
they serve”7.
Safeguards 6, 7 and 8 detailed above will be referred to as the “Three Additional
Safeguards”.

7

Beijing GAC Advice p. 10.

5

14.

In a response to the Beijing GAC Advice, Donuts (Applicant’s parent company) agreed
to some of the safeguards suggested by the GAC, but rejected the implementation of thethree measures detailed in the prior paragraph8.
Consolidation of cases

15.

By letter of 22 April 2013 the Centre informed the parties that the case had been
consolidated with EXP/507/ICANN/1249.
Applicant’s response

16.

Applicant filed its Response on 9 June 2013.
Durban GAC Advice17.

On 18 July 2013, the GAC issued a new advice with occasion of its meeting in Durban[“Durban GAC Advice”] stating in relation to the Beijing GAC Advice on safeguards
to Category 1 new gTLDs, that the GAC would continue the dialogue with the NGPC(New Generics Program Committee) on this issue.10 The issue remains therefore
undecided so far.

18.

Donuts stated in its response to the Durban GAC Advice that it believed the protections
it established were sufficient, and that it had no plans to amend the applications for theaffected gTLDs.
Appointment of Expert

19.

The Expert was appointed on 1 July 2013 by the Chairman of the Standing Committeeof the International Centre for Expertise of the ICC.
Approval of the Application

20.

On 26 July 2013 ICANN declared that the Application had passed the Initial
Evaluation.
Main procedural steps of the Proceeding

21.

The file was transferred to the Expert on 5 August 2013 following payment in full of theestimated Costs by the parties and the confirmation of the constitution of the Panel by
the Centre.

8

In its 10 May 2013 Comment on GAC Advice on New gTLDs.
The Applicant was requested to file a response for each objection. The Panel was given the discretion to issue
one or two Expert Determinations. The Mission Statement provided that there would be two Expert
Determinations.
10
On 10 September 2013 the NGPC stated that the Category 1 Safeguard advice from the Beijing GAC Advice
remained open and would continue the dialogue with the GAC at a further date. The evaluation and objection
processes remained on track.
9

6

22.

By letter of 12 August 2013 the Expert inquired whether the parties required further
submissions11 and on 26 August 2013 the Expert authorised additional submissions,establishing 10 October 2013 as the date to deliver the Expert Determination. It is notedthat no hearing was requested by either Objector or Applicant.

23.

On 4 September 2013 the Expert delivered to the parties a Mission Statement, reflecting
the basic aspects of the Proceeding.

24.

Objector delivered the additional submissions on 10 September 2013.

25.

By letter of 25 September 2013 the Expert informed the parties that the Centre, uponrequest from Expert, had authorised the extension of the deadline to deliver the Expert
Determination 15 October 201312.

26.

Applicant filed its additional submissions on 27 September 201313.

27.

I note that the language of the Proceeding has been English14 and this is the language ofall documentation submitted and that all communications have been delivered byemail15.
Delivery date28.

This Expert Determination was submitted for scrutiny to the Centre in accordance with
Art. 21 (a) and (b) of the Procedure.

3.
29.

A community objection permits an application to be rejected if a significant part of thecommunity to which the string is explicitly or implicitly targeted presents substantial
opposition. The determination is to be made by an expert panel16.
A.

30.

REQUIREMENTS APPLICABLE TO THE OBJECTION

Applicable rules

In its review of a community objection, the panel will apply primarily:

11

Objector required further submissions.
Pursuant to article 21 (a) of the Attachment.
13
Expert granted Applicant’s request to extend the deadline to present the additional submissions by two days
due to a late filing by Objector of an additional document (Global Federation of Insurance Associations[“GFIA”] letter of 19 September 2013).
14
As required by article 5 (a) of the Procedure.
15
As required by article 6 (a) of the Procedure.
16
Recommendation 20 – ICANN Final Report: “An application will be rejected if an expert panel determinesthat there is substantial opposition to it from a significant portion of the community to which the string may be
explicitly or implicitly targeted.”
12

7

-

-

Module 3 (Objection Procedures) [the “Procedure”] and its attachment [the“Attachment”] of the gTLD Applicant Guidebook [“Guidebook”] (other parts of
the Guidebook will also be helpful as reference, including specifically Module 4(String Contention Procedures)17).
Rules for Expertise of the ICC [“Rules”].
Appendix III to the Rules, Schedule of expertise costs for proceedings under theProcedure [“Appendix III”].
ICC Practice Note on the Administration of Cases under the new gTLD Dispute
Resolution Procedure [“Note”].

31.

Finally, the Procedure refers to the 8 August 2007 Final Report by the ICANN GenericNames Supporting Organization [“ICANN Final Report”]18, which includes therationales of the different objections19. Thus, the panel can draw additional guidancefrom the ICANN Final Report.

32.

I now detail below certain relevant aspects of each of these rules.
B.

Requirements and standards

33.

Pursuant to the Procedure, an Objection must satisfy the following requirements to be
successful:

34.

First: Objector must prove that it has standing to object20 (a).

35.

Second: Having proven standing, objector must demonstrate that the following four
tests regarding the merits are complied with21 (b):-The community invoked by the objector is a clearly delineated community;
The community opposition to the application is substantial;
There is a strong association between the community invoked and the applied-for
string; andThe application creates a likelihood of material detriment to the rights oflegitimate interests of a significant portion of the community to which the string
may be explicitly or implicitly targeted.

The standing and the four tests described below will be referred to as the“Requirements”.
36.

To assist the panel in its task, the Procedure identifies for each of the Requirements a
non-exhaustive list of factors which the panel may consider. The panel is authorised to17

On the reference value of Module 4, see paragraph 50 for further analysis. I note that both the Objector (Add.
Sub. p. 1) and the Applicant (Add. Sub. p. 6) make a reference to the CPE (Community Priority Evaluation
procedure), which is described in Module 4.
18
Procedure at p. 3-5.
19
Recommendation 20.
20
Procedure at 3-8.
21
Procedure at 3-22.

8balance the relevant factors (though not all factors must be established) and to takeother factors into consideration22.
37.

In making its determination, the panel may refer to and base its findings upon thestatements and documents submitted by the parties and/or any rules or principles that it
determines applicable23.

38.

The panel must bear in mind that it is the Objector who bears the burden of proofingthat the requirements and standards applicable to the Objection are met24.
a.

Standing to object

39.

The first step is to qualify for standing to file a community objection. In order to havestanding, Objector must prove that it is an established institution and that it has an
ongoing relationship with a clearly delineated community.

40.

To evaluate whether Objector is an institution, the panel may consider, among others,
the following factors25:-

41.

To evaluate whether there is an on-going relationship with a clearly delineatedcommunity, the panel may consider, among others, the following factors26:-

42.

Level of global recognition of the institution;
Length of time the institution has been in existence; andPublic historical evidence of its existence, such as the presence of a formal charteror national or international registration, or validation by a government, intergovernmental organisation, or treaty; the institution must not have been
established solely in conjunction with the gTLD application process.

-The presence of mechanisms for participation in activities, membership andleadership;
Institutional purpose related to the benefit of the associated community;
Performance of regular activities that benefit the associated community and
The level of formal boundaries around the community.

b.

Requirements on the merits

If the Objector is found to have standing, then it must pass the following four tests on
the merits.

22

Procedure at 3-22/3-25.
Attachment, article 20 (b)24Attachment, article 20 (c)25Procedure at 3-8.
26
Procedure at 3-8.
23

9

(i)
43.

First test: Objector must prove that the community is clearly delineated

To evaluate whether the community is clearly delineated27, the Procedure allows thepanel to consider, among others, the following factors:--

The level of public recognition of the group as a community at a local and/or
global level;
The level of formal boundaries around the community and what persons or
entities are considered to form the community;
The length of time the community has been in existence;
The global distribution of the community (this may not apply if the community is
territorial); andThe number of people or entities that make up the community.

(ii)

Second test: Objector must prove that the community opposition is substantial-

44.

This second Requirement will only be analysed if the first test is passed, i.e. if a clearlydelineated community is found.

45.

In considering whether the second test28 is met, the Procedure provides that the panel
may consider, among others, the following factors29:--

The number of expressions of opposition relative to the composition of thecommunity;
The representative nature of entities expressing opposition;
The level of recognised stature or weight among sources of opposition;
The distribution or diversity among sources of expressions of opposition,
including:·
Regional·
Subsectors of community·
Leadership of community·
Membership of community
The historical defence of the community in other contexts; andThe costs incurred by objector in expressing opposition, including other channels
the objector may have used to convey opposition.

(iii) Third test: Objector must prove the existence of a strong association
46.

If substantial opposition to the application is evidenced, the objector must then provethat there is a strong association between the community invoked and the applied-for
string30.

27

Procedure 3-23.
Procedure 3-23.
29
Procedure at 3-8.
30
Procedure 3-24.
28

10

47.

To evaluate the existence of a strong association between the string and the community,
the panel may consider, among others, the following factors31:-

Statements contained in the application;
Other public statements by the applicant; andAssociations by the public.

(iv) Fourth test: Objector must prove likelihood of detriment to rights
48.

Finally, if a strong association between community and string has been established, theobjector must prove that the application creates the likelihood of material detriment to
the rights or legitimate interests of a significant portion of the community to which thestring may be explicitly or implicitly targeted32.

49.

To evaluate the existence of material detriment to the members of the community, theProcedure advises the panel to use, among others, the following factors33:
-

-

-

-

Nature and extent of damage to the reputation of the community represented by
the objector that would result from the applicant`s operation of the applied-for
gTLD string;
Evidence that the applicant is not acting or does not intend to act in accordancewith the interests of the community or of users more widely, including evidence
that the applicant has not proposed or does not intend to institute effective security
protection for user interests;
Interference with the core activities of the community that would result from theapplicant`s operation of the applied-for gTLD string;
Dependence of the community represented by the objector on the DNS for its core
activities;
Nature and extent of concrete or economic damage to the community represented
by the objector that would result from the applicant`s operation of the applied-for
gTLD string; andLevel of certainty that alleged detrimental outcomes would occur.
***

50.

Module 4 of the Guidebook (String contention procedure) also provides criteria toreview and score a community-based application. It shares some common concepts withthe community objection procedure (such as community establishment and nexus
between the string and the community), though its standards are stricter, and thus canonly be taken as a general reference34.

31

Procedure 3-23.
Procedure 3-24.
33
Procedure 3-23.
34
Thus, Module 4 states that “It should be noted that a qualified community application eliminates all directly
contending standard applications, regardless of how well qualified the latter may be. This is a fundamental
reason for very stringent requirements for qualification of a community-based application, as embodied in thecriteria below. Accordingly, a finding by the panel that an application does not meet the scoring threshold to
32

11

51.

ICANN provides the following guidelines in relation to Recommendation 20 of its Final
Report:“Guidelinesa) Substantial – in determining substantial the panel will assess the following:
signification portion, community, explicitly targeting, implicitly targeting,established institution, formal existence, detriment.
b) Significant portion – in determining significant portion the panel will assess thebalance between the level of objection submitted by one or more establishedinstitutions and the level of support provided in the application from one or moreestablished institutions. The panel will assess significance proportionate to theexplicit or implicit targeting.
c) Community – community should be interpreted broadly and will include, forexample, an economic sector, a cultural community or a linguistic community. It
may be a closely related community which believes it is impacted.
d) Explicitly targeting – explicitly targeting means there is a description of theintended use of the TLD in the application.
e) Implicitly targeting – implicitly targeting means that the objector makes anassumption of targeting or that the objector believes there may be confusion byusers over its intended use.
f) Established institution – an institution that has been in formal existence for atleast 5 years. In exceptional cases, standing may be granted to an institution thathas been in existence for fewer than 5 years.
Exceptional circumstances include but are not limited to a re-organization, merger
or an inherently younger community.
The following ICANN organizations are defined as established institutions: GAC,
ALAC, GNSO, ccNSO, ASO.
g) Formal existence – formal existence may be demonstrated by appropriate public
registration, public historical evidence, validation by a government,intergovernmental organization, international treaty organization or similar.
h) Detriment – the objector must provide sufficient evidence to allow the panel todetermine that there would be a likelihood of detriment to the rights or legitimate
interests of the community or to users more widely”.

4.

SUMMARY OF THE OBJECTION

52.

Objector claims that the granting of the string “<.insurance” to the Applicant will resultin material detriment to the insurance community35, and considers that the Application
should be rejected.

53.

Objector claims that it has standing to object (A), and meets the four tests on the merits
required by the Procedure (B).

prevail in a community priority evaluation is not necessarily an indication the community itself is in some way
inadequate or invalid.” – Mod. 4 at p. 4-9.
35
Objection p. 5.

12

A.
54.

Objector must prove that it is an established institution (a) and that is has an on-going
relationship (b) with a clearly delineated community(c).
a.

55.

Standing to object

An established institution

To establish standing in this case, the Objector points out that it is an organisation witha long existence. The first of its predecessor organisations was formed in 1912, and in1999 the organisation’s mission was broadened to represent the interests of integrated
financial providers (i.e., banks, insurance and securities). Today the organisation
includes approximately 100 of the largest integrated financial services companies
operating in the U.S., including 21 major insurance institutions36.
b.

On-going relationship with the community

56.

The Objector claims that it has an on-going relationship with the insurance community.
This is evidenced by its mission to unify the leadership of large integrated financial
companies, including insurance. It seeks to be the premier forum for leaders of thefinancial services industry, to determine and influence critical public policy issues, andto promote the interests of member companies in federal legislative, regulatory andjudicial fora37.

57.

The relationship with the community is further evidenced by the various activities
developed on behalf of the community, including a series of programs and working
groups; and promoting a trade association of insurance agents and brokers.

58.

Within this context, the Objector has filed through an affiliate, fTLD Registry Services,a Community Application for the string <.insurance, and intends to operate it in amanner consistent with the interests of the insurance community38. The Community
Application filed by the fTLD Registry Services has the support of a number of relevantinternational insurance associations.
c.

59.

The community is clearly delineated

The Objector claims that the insurance community is clearly delineated by virtue of theformal regulatory boundaries imposed in all OECD member countries39. Further
evidence of this boundary is the general restriction on the use of the term “insurance”
only to the entities meeting the legal requirements to operate in the insurance market40.

36

Objection p. 4.
Objection p. 4/5.
38
Objection p. 8.
39
Objection p. 4.
40
Objection p. 7.
37

13

60.

Last, but not least, the strong support by substantial international insurance associations
to the Community Application filed by fTLD Registry Services is, according to the
Objector, evidence of the delineation of the insurance community41.
B.

61.

The Requirements consist of four tests, the first of which (the existence of a clearlydelineated community) has already been addressed in the previous section. The
Objector’s position with respect to the remaining three tests is as follows.
a.

62.

Requirements on the merits

There is substantial opposition to the Application

Objector claims that, from among this clearly delineated community, there is substantial
opposition to the Application. In addition to the opposition as represented by the
Objector, including several of its members individually, and other entities such as the
Global Federation of Insurance Companies, the Expert should consider the very
substantial international support to the fTLD Registry Services Community
Application42.
b.

There is a strong association between the string and the community

63.

Objector claims that there is a strong association between the community and the string.
This is due to the existence of rules or regulations at local and/or national level which
regulate who can call themselves an insurance company/agent/broker43.

64.

Objector suggests that the text of the Application itself recognises the nature of thiscommunity and its participation44.
c.

65.

The application is likely to cause material detriment

The opposition to the Application is based on the material detriment that the operationof the Application will generate to the insurance community. The Objector highlightsthat the Applicant has stated that it will operate the string in an open manner, without
requiring any insurance related qualification by potential registrants45. This is against
the advice provided in the Beijing GAC Advice, which stated the need to consider

41

Additional Submission [“Add. Sub.”] p. 2.
Objection p. 8.
43
Objection p. 9.
44
Specifically, Objector reflects the following paragraph from the Application: “.Insurance will be particularly
attractive to registrants providing insurance products and services (one of the world’s largest and most
attractive industries), and the end-users who seek to protect against risk or otherwise are interested in or are
required to have insurance coverage. Registrants may include insurance companies, brokerages, adjusters,
service providers, reinsurance organizations, agents and others who can use the TLD to more intuitively reach
end-users. The TLD also could provide a forum for ratings agencies, journalists, industry analysts, insurance
customers, policy makers, and others who take a professional or personal interest in this important financial
instrument.” Objection p. 9.
45
Objection p. 9/10.
42

14

accreditation at the time of registration for the domain of authorisations/licences to act
in the insurance market46.
66.

Objector alleges that the lack of safeguards based on proof of such due
authorisations/licences at the time of registration will facilitate abusive behavior such as
phishing and cybersquatting, with no adequate remedy for the end user47. Measurestaken to remedy any breach or abuse after the damage to the end user has been done will
not repair the damage48.

67.

Objector claims that the risk for harm is even further increased by the Applicant’s intent
to allow proxy registrations, which facilitate improper and abusive activities49.

68.

Another negative consequence of making available the string to entities on an open
basis is the need by the insurance industry to register a substantial number of purely
defensive and unnecessary registrations to protect its name. This defensive action, theneed to maintain a constant monitoring of the internet and to take remedial action(letters of warning, URDPs, etc.) would result, according to the Objector, in substantial
costs to the community every year50.
C.

Additional aspects

69.

Objector submits that the review of the Objection should be made taking into context
the fact that Donuts has a legal and operational relationship with Demand Media, anentity heading affiliates including domain name registrations51. For various reasons,
Objector calls into question the relationship between Donuts and Demand Media, andits impact on the operation of the string52.

70.

On this subject, Objector states that Auburn Park is a recently incorporated company,
with no operational history, and thus the importance of looking at the background of its
senior management and the strategic arrangement with Demand Media. Objector
requests the Expert to undertake an independent review regarding the relationshipbetween Donuts and Demand Media and its potential impact on the insurance
community should Applicant be granted the right to operate the string53.

46Add. Sub. p. 7.
Objection p. 12.
48
Add. Sub. p. 7.
49
Objection p. 11.
50
Objection p. 12.
51
Facts provided by the Objector defining the relationship are (i) several key Donut executives previously held
senior positions in eNom, (ii) Donuts has contracted with Demand Media Europe Ltd. to provide backend
registry services for Donut’s 307 applications, and (iii) Demand Media has the right to acquire equal ownershipwith Donuts for a maximum of 107 gTLDs for which Donuts has applied. Objection p.10.
52
Among other allegations, the existence of an extraordinary number of rulings against Demand Media
companies by URDP panels – based on findings of bad faith, cybersquatting and/or typosquatting. See letterfrom J. Stoler to S. Crocker dated July 28, 2012 (Objector’s Add. Sub.p.8).
53Add. Sub. p. 9.
47

15

5.
71.

Responding to the Objection, Applicant claims that Objector has failed to provestanding (A), and has not proven any of the four tests on the merits (B).
A.

72.

-

Requirements on the merits

On the merits Applicant submits that Objector has not been able to meet any of the four
tests for several reasons, namely:a.

75.

A clear delineated community is required by the standard and no clearlydelineated community exists where it is identified by the broad term “insurance”.
The “community named by the objector must be … strongly associated with theapplied-for gTLD string”54. In other words, the words “insurance” must readily
bring Objector’s organisation to mind55.

Finally, Applicant notes that Objector (through its affiliate, fTLD Registry Services) has
applied for the same string as a community, and thus has a different and independent
remedy – the Community Priority Evaluation [“CPE”]56. This mechanism is available,
whenever there is more than one contender for the same string – one contender being acommunity. In such case, a Community Application permits its applicant (i.e. thecommunity) to request a Community Priority Evaluation procedure. If the community
applicant is successful and meets the stringent tests of the CPE, it will prevail over any
other standard application for the same string (even if the other strings have met all
requirements, and do not harm the community).
B.

74.

Lack of standing

Applicant alleges that Objector lacks standing for various reasons, namely:-

73.

SUMMARY OF APPLICANT’S RESPONSE

No clearly delineated community

The Objector has not identified a clearly delineated community57:--

Because the word insurance has several meanings, it is impossible to show that
this generic term describes a clearly delineated community.
There is a low or no level of formal boundaries around the term <.insurance> anda large degree of uncertainty as to what person or entities would be considered toform such a community.
Even if insurance refers only to “regulated insurance”, which it does not, theObjector occupies but a fraction of the universe by that term.
Many different types of insurance exist (e.g. health, life, automobile, liability,
home, professional liability, long-term disability, etc. to name a few). Such

54

Guidebook section 3.2.2.4 at 3-7.
Response p. 6.
56
Response p. 6.
57
Response p. 7/8.
55

16

-

b.
76.

-

c.

Objector provides no evidence of the stature of those voicing opposition, or of the
distribution or diversity of such opposition.
No evidence is provided of any historical defense mounted for the community or
costs incurred.
The letters of supporting the Community Application dot not imply opposition to
the Application59.
Lack of strong association

The Objector has not evidenced the existence of a strong association between thecommunity and the string60:-

78.

No substantial opposition

Objector has failed to evidence substantial opposition58:-

77.

variations make even the narrow product aspect of insurance impossible todelineate.
Applicant argues that an infinitely greater universe of users with conceivableinterest in the various meanings and implications of “insurance” exists. Objector
attempts to identify a narrow community more susceptible of “delineation” thanthe vast population associated with the generic “insurance” designation. In doing
so, Objector attempts to change the standard: there must be a clear delineatedcommunity invoked by the term “insurance”.

-

Objector’s failure to define the community makes it impossible to assess whether
the public associates the word “insurance” with that “community”.
As evidenced by the Application, the string will be made available to a wide
variety of internet users, and not just those providing insurance products andservices.

d.

No material detriment

The Objector fails to provide evidence of material detriment to the community:-

Applicant has established effective security protections that are sufficient toprotect the best interests of all users61.
There is no evidence that Applicant’s string poses a likelihood of damage to the
purported “community” or its “reputation”. While the Objector claims that theoperation of the string will invite an increasing cybersquatting and phishing threat,
it tenders no evidence that such operation would create any greater or different
harm to the industry than exists today62.

58

Response p. 9.
Add. Sub. p.5.
60
Response p. 10.
61
Response p. 11.
62
Response p. 12.
59

17

-

-

-

C.
79.

There is no evidence to the Objector’s claim that an <.insurance gTLD could
confuse users into believing that they are entering an area with regulatory
protection63.
There is no evidence as to why members would have to register domain names
defensively as a potential harm emanating from the string any more than what its
members do now. To the contrary, the Applicant has included as one of its
safeguards measures the creation of a Donuts Protected Marks List members,
which will allow concerned members to register in advance to get notification of
cybersquatting and other internet schemes64.
There is no relevant evidence regarding interference with the community’s core
activities, nor demonstrating any level of certainty regarding the detriment its
constituents may suffer65.
Additional aspects

Regarding Objector’s attempt to challenge Applicant’s ethics, and to link it with
Demand Media and the domain registrar eNom, and to suggest impropriety by all three,
Applicant denies the allegations. Donuts has passed the Initial Evaluation for
approximately 110 applications, and ICANN has found that Donuts is ethically,
technically and financially fit to operate the many registries for which it has applied66.

6.

FINDINGS OF THE EXPERT

80.

In order to be successful, the Objector must prove that it has standing to object (A) andthat the four Requirements are met: the community it invokes is clearly delineated (B),there is substantial opposition from the community to the Application (C), there is astrong association between the community and the string (D), and the Application
creates the likelihood of material detriment to the rights or legitimate interests of asignificant portion of the community to which the string may be explicitly or implicitly
targeted (E).

81.

The Objector claims it has met all the above Requirements, while the Applicant aversthat the Objector has failed to prove any of the above Requirements.

82.

I turn now to review the Requirements.
A.

83.

Objector’s standing to object

To have standing, Objector must prove that it is an established institution (a) with anon-going relationship (c) with a clearly delineated community (b).

63

Response p. 13.
Response p. 12.
65
Response p. 13.
66
Response p. 12.
64

18

a.

Objector as an established institution

84.

To establish standing the Objector must first prove that it is an established institution.

85.

The Objector has submitted evidence that it is an organization representing the interestsof integrated financial providers. Its origins date from the early twentieth century.
Though originally it was aimed essentially at the banking field, in 1999 it changed its
mission to include insurance and securities markets. Today its members include bankcompanies (which comprise around 44% of the members), insurance companies (around28%), broad diversified companies (around 17%) and securities companies (around10%)67.

86.

On the basis of the above, I am satisfied that the Objector has shown it is an establishedinstitution for the purposes of this Proceeding.
b.

Relationship with a clearly delineated community

87.

Having shown that it is an established institution, the Objector must then prove that it
has an ongoing relationship with a clearly delineated community invoked by the
Objector.

88.

The first question to be addressed is the definition of the community the Objector is
invoking. The Objector does not specifically state the community it represents (i.e. theglobal insurance community or the U.S. insurance community). Though there is some
contradiction/ambiguity in the Objection, in my opinion it is clear that the Objector isbasing its case on the global insurance community, as proven by the fact that the
Objector refers to the regulatory constraints at OECD level countries68. Additionally,
the Objector has gone to great lengths to provide evidence of the opposition frominternational insurance associations, with references to the “growing ranks of theinsurance community explicitly supporting the community approach”69. I thus conclude
that the community being invoked is the global insurance community.

89.

There is no objection in that the community invoked by the Objector coincides with an
economic sector. I note that the Guidelines to Recommendation 20 of the ICANN Final
Report define community as follows:“Community – community should be interpreted broadly and will include, forexample, an economic sector, a cultural community or a linguistic community. It
may be a closely related community which believes it is impacted”.

67

Objection p. 4.
Objection p. 6 - Note that Applicant acknowledges this in its own Add. Sub. at p. 6.
69Add. Sub. p. 2.
68

19

90.

The next question to address is: what should be understood as a delineated community?

91.

Regarding delineation, Module 4 of the Guidebook may serve as a reference70. Its
criterion 1, which deals with the determination of Community Establishment (i.e.
determination of the existence of a community), defines delineation as follows:“Delineation relates to the membership of a community, where a clear and straightforward membership definition scores high, while an unclear, dispersed or unbounddefinition scores low”71.

92.

Thus, delineation deals with the clarity with which the membership definition isestablished. It follows that the issue turns on whether the global insurance community isclearly delineated72.

93.

The Objector claims that it is, as evidenced by:-

The fact that insurance companies carrying direct insurance activities are subject
to regulation and supervision in the OECD countries73,
The restriction on the use of the word “insurance” in various contexts by various
national and local laws74, andThe need for insurance agents/brokers to be licensed to provide the products orservices75.

94.

The Applicant, on the other hand, submits three counter-arguments seconding theinexistence of a delineated community: (i) clear delineation of a community that hassuch a sprawl of entities is not achievable76; (ii) since the word insurance has several
meanings, it is impossible for Objector to show that this generic term describes a clearlydelineated community, and (iii) even if insurance referred only to “regulated insurance”,
the Objector occupies but a fraction of the universe covered by that term.

95.

I am persuaded by the Objector and unconvinced by the arguments put forward by the
Applicant.

96.

(i) The insurance community is a highly regulated sector. Most jurisdictions haveenacted regulations providing for the need to meet substantial entry requirements. These
tests are based on solvency, technical capability and the requirements that officers andshare-holders meet fit and proper standards. Regulations also restrict the use of the word

70

Module 4 provides the criteria to evaluate the existence of a community in the case of a Community Priority
Evaluation. It shares some common concepts with the community objection procedure, though its standards arestricter, and thus can only be taken as a general reference.
71
Module 4 at 4-11.
72
This question is one of the four tests on the merits to be reviewed below, where a more detailed consideration
could be made. For the purposes of standing, the main factor provided in the Procedure is the level of formalboundaries around the community, which I proceed to consider.
73
Objection p. 7.
74
Objector cites Nevada, New Zealand, Canada, British Virgin Islands as examples.
75
Objection p. 7.
76Add. Sub. p. 1.

20

“insurance”: entities which do not meet the entry requirements and are not properly
registered are precluded from using the term insurance in their corporate name. Finally,
the regulations cover the supervision of the ongoing activities. All these measures haveas their ultimate goal the protection of the consumer and of the solvency of the financial
system77.
97.

These formal boundaries, providing high entrance barriers, make the insurance industry
a clearly delineated community.

98.

(ii) The Objector does not have to show that the string describes a clearly delineatedcommunity uniquely. The Procedure requires the Objector to evidence a strong
association between a clearly delineated community and the string. A strong association
does not mean that the string term has no meaning other than identification of thecommunity78.

99.

(iii) Applicant also states that even if insurance refers only to “regulated insurance”, anassumption which Applicant rejects, the Objector occupies but a fraction of the universe
covered by that term. This argument must fail since the Procedure requires norelationship between the representational size of the Objector and the community
invoked. In other words, there is no requirement that the Objector should represent any
minimum part of the community invoked.

100. Applicant also tries to argue that many different types of insurance exist (e.g. health,life, automobile, liability, home, professional liability, long-term disability, etc. to namea few), and that such variations make even the narrow product aspect of insurance
impossible to delineate.
101. This argument must also fail: in my opinion, the existence of different types of
insurance does not affect the delineation of the community. The insurance community
as invoked involves all sectors of the regulated insurance activity. The fact that someinsurers may be involved in life, others in property and casualty does not alter theconcept of a single general insurance community, acting to promote the interests of thecommunity as a whole. A clear example can be drawn from a review of the insurance
members of the Objector, which cover all areas of insurance, including personal
insurance, life, casualty & property, special insurance etc. A similar review of themembers list of the Global Federation of Insurance Associations reveals a grouping of
insurance associations covering the main ranges of insurance described.

77

I note that the Beijing GAC Advice reflects on this point, stating that “In particular, a limited subset of theabove strings are associated with market sectors which have clear and/or regulated entry requirements (such as:
financial, gambling, etc.) in multiple jurisdictions”.
78
Module 4 provides the criteria to evaluate the existence of a community in the case of a Community Priority
Evaluation. Criterion 2 thereof provides guidance on the valuation of the nexus between the proposed string andthe community. The criteria to apply are nexus (matching of string and name of community) and uniqueness(string term has no other significant meaning beyond identifying the community). The nexus criteria could score
up to three points, while the uniqueness criteria could score a maximum of one (Guidebook at 4-13).
Additionally, when dealing with the definition of relevance in criterion 4, the Guidebook clearly states that there
may be more than one community associated to a string (Guidebook, at 4-18).

21

c.

On-going relationship102. I turn now to the issue of the on-going relationship.
103. On this point, the Objector has shown that it participates in legislative, regulatory andjudicial fora for the improvement and defence of the sector, and that it has createdworking groups, committees and other instruments which facilitate the participation ofits members in activities related to the general interests of the insurance sector.
104. I have reviewed the activities mentioned by the Objector – this being one of the criteria
established in the Procedure79 – and note that most of them are related to the U.S.
market, and not to the global community being invoked.
105. However, as Expert I am authorised to value factors other than those expressly
established in the Procedure80, such as the fact that the international insurance
associations have shown clear support to the fTLD Registry Services Community
Application (pro memoria: the application made through the Objector’s affiliate). This
support was provided, among others, by:---

The Global Federation of Insurance Associations, (a representative body for the
global insurance industry comprising 35 member associations, who account for
approximately 88% of the world insurance premiums);
Insurance Europe, the European insurance and reinsurance federation(representing undertakings accounting for around 95% of total European premiumincome);The Insurance Council of Australia (representing around 90% of total premiumincome written by private sector insurers), and theInsurance Bureau of Canada, (the Canadian national industry association
representing 90% by premium of the P&C Insurance business)81.

106. I consider this support to be proof of an on-going relationship, especially taking into
account that both the Insurance Bureau of Canada and the Insurance Council ofAustralia have requested fTLD Registry Services to expand the availability of the string
to the global insurance community. I understand this as clear evidence of a continuous
relationship of trust with fTLD Registry Services and indirectly, with the Objector.
These are signs that the international insurance community is confident that the
Objector (albeit indirectly through its affiliate) will act in the interest of the community.
107. The above conclusion is reinforced by the fact that the Global Federation of Insurance
Associations issued on 19 September 2013 a letter expressly seconding the Objector’s
actions in this Proceeding, and reiterating the endorsement made to the Community
Application registered by its affiliate, fTLD Registry Services.

79

Procedure 3-23.
Procedure 3-23.
81
See GFIA letter of 19 September and letters in annex A to Objector’s Add. Sub.
80

22

108. It is my opinion that the facts described above are significant and, jointly with the otherconsiderations made, reveal the existence of an ongoing relationship between the
Objector and the community invoked.
109. In conclusion, standing requires the Objector to prove that it is an establishedcommunity with an on-going relationship with a clearly delineated community invokedby the Objector. I find that Objector has satisfied all these elements, and declare that the
Objector has standing to file the Objection.
***
110. There are yet two counter-arguments to analyse: Applicant claims that the Objector,
having applied for the same string as a community application, has a different andindependent remedy –the Community Priority Evaluation (CPE), which in Applicant’sopinion is the proper route82 (d) and that the community named by the objector must be
strongly associated with the string (e).
d.

Objection procedure vs. CPE

111. In my opinion, there is no basis to conclude that the community objection procedure andthe Community Priority Evaluation procedure are mutually exclusive.
112. These are in fact two different mechanisms: whilst the objection seeks to eliminate anapplication harmful to a community, by contrast, in the CPE a community applicant
seeks to prevail over all standard applicants on the basis of its community status(without the need to prove that the contending applications are harmful).
113. The CPE procedure not only reviews different issues, but by its own words it also
applies a more stringent level of tests. Thus, the objectives of each of the procedures,the issues reviewed, the level of proof and the chances of success are different.
e.

Strong association between the community and the string

114. Applicant states that, for the purposes of a standing review, a “community named by theobjector must be … strongly associated with the applied-for gTLD string” inaccordance with the Guidebook section 3.2.2.4 at 3-7. In other words, the words“insurance” must readily bring Objector’s organization to mind.
115. I do not agree with the Applicant.
116. Section 3.2.2.4 states that:“[t]o qualify for standing for a community objection, the objector must prove bothof the following: It is an established institution … [and] … [i]t has an ongoing
relationship with a clearly delineated community… .”82

Response p. 6.

23

117. The Procedure provides for two standing requirements, which have both been analysedin the preceding section and which I judged to be sufficiently proven. Once theserequirements are established, the Objector must be deemed to have standing83.
118. Furthermore, the statement that the words “insurance” must readily bring Objector’sorganization to mind is not correct. Section 3.2.2.4 of the Procedure refers to theassociation between the string and the community, not between the string and the
Objector.
***
119. Having established standing, the next task is to review whether the four tests on the
merits have been satisfied.
B.

Test 1: Clearly delineated community

120. The first test requires proving that a clearly delineated community exists, a concept
which has already been considered for the purposes of standing. The analysis made insection 6.A is valid for these purposes, supplemented by the following.
121. One of the strongest arguments proving the existence of a delineated community are thevarious national laws restricting the use of the word “insurance” to duly licensed andregistered service providers.
122. In addition, there are several international organizations that represent the international
insurance community. Examples of these include the International Association of
Insurance Supervisors; the European Insurance and Occupational Pensions Authority
and the International Insurance Foundation.
123. I also find relevant the recent creation of the Global Federation of Insurance
Associations, an entity which according to its web page accounts through its members
for around 88% of the world’s insurance premiums. The existence of a global federationof national insurance associations, which represent a very high percentage of theinternational insurance market, serves convincingly to evidence a clearly delineatedcommunity.
124. In conclusion, I find that there is a clearly delineated insurance community.

83

The reference to the strong association between the community and the string made in section 3.2.2.4 must be
understood as a general background statement preceding the actual requirements for evaluation of standing. I
note that a string may explicitly or implicitly target a community (see test 4, Procedure at p 3-23), and, in myopinion and consistently with the terms of the Procedure, the review of such targeting is to be made under suchtest on the merits and not at the standing phase. In any event, the question is probably moot since failure to prove
the strong association will, regardless of where it is made, result in the failure of the Objection.

24

C.

Test 2: Substantial opposition by the community

125. Having considered that the community invoked by the Objector is clearly delineated,
the next test is to determine whether there is substantial opposition from the community.
126. The Objector claims that it has proven substantial opposition from the community.
Applicant on the other hand, submits that no such evidence has been provided.
127. To evaluate whether the opposition is substantial, the Procedure invites the Expert toconsider several factors, including, among others, the number of expressions of
opposition relative to the composition of the community, the representative nature ofentities expressing opposition, the level of recognised stature or weight among sourcesof opposition and the distribution or diversity among sources of expressions of
opposition.
128. In this context, I highlight that Objector represents 21 insurance member companies
with a substantial size and business activity, of which 14 are within the top 50 U.S.
insurance companies and five of them are listed within the 50 largest insurancecompanies in the world by assets.84
129. In addition, the Objector has delivered eight letters of support expressing opposition to
the Application, seven from among its members, and one from the Global Federation of
Insurance Associations (a representative body for the global insurance industry
comprising 35 member associations, which represent insurers and reinsurers in 56
countries, collecting 87% of world-wide premiums – according to the Federation’sweb)85.
130. The above is supplemented by several opposition comments made in ICANN’s publicforum, notably one from the American Insurance Association, an association grouping
300 U.S. Property & Casualty insurers, with more than 100 billion dollars in premiums.
This entity is in itself an objector to the Application in the consolidated proceedings
507/CANN/124.
Given these facts, I could probably conclude at this point that there is sufficientevidence of substantial opposition from the global community. However, in addition to
the direct expressions of opposition mentioned above, the Objector has also provided
the full list of supporters/endorsers of the Community Application filed by the
Objector’s affiliate fTLD Registry Services86. I note two aspects:
131. (i) A success of the CPE implies a defeat of the Applicant in this Proceeding (the rulingin the CPE will prevail over any other standard application for the same string – even if
the other strings have met all requirements, and do not harm the community). It follows
that any endorsement of a Community Application is an implicit endorsement of such

84

Source: www.relbanks.com
www.gfiainsurance.org
86
Add. Sub. p. 2.
85

25

application against any competing strings. Such endorsements must be construed astacit oppositions to the Applicant’s application87.
132. (ii) The endorsers of the Community Application comprise international insurance
associations of substantial size and geographical diversity88.
133. In conclusion, a significant part of the international insurance associations object to theApplication and hence, the Objector has met the requirement of substantial opposition
from the community.
D.

Test 3: Strong association between community and string

134. Having established substantial opposition to the Application, the next test to consider iswhether there is a strong association between the community and the string.
135. The Objector claims that a strong association does indeed exist, whilst the Applicant
submits that the string is open to all users, and should not be restricted to a limited
number of entities. The Applicant adds that because there is no delineated community,
there can be no association with the string89.
136. To help determine the issue, the Expert may balance factors including: the statements
contained in the Application (a), other public statements by the Applicant (b), or the
association by the public between community and the string (c).
a.

Statements contained in the Application

137. Regarding the Application, both parties have drawn my attention to the answer provided
by Applicant to question 18 (a), though inferring different conclusions.
138. The relevant paragraph in the Application states as follows:“.Insurance will be particularly attractive to registrants providing insurance
products and services (one of the world’s largest and most attractive industries),
and the end-users who seek to protect against risk or otherwise are interested in or
are required to have insurance coverage. Registrants may include insurancecompanies, brokerages, adjusters, service providers, reinsurance organizations,87

In this sense, the GFIA endorsement states: “The GFIA welcomes the fTLD Registry Services communitybacked bid. It believes that community applications such as that by fTLD is the most appropriate way to manage
the .insurance gTLD.”. Similarly, the IE letters states: “As a community applicant from the industry it represents,
fTLD Registry Services understands the industry’s need for domain governance and internet security. We haveconfidence that fTLD will act in the interests of the industry”.
88
Among others, the Global Federation of Insurance Associations, a representative body for the global insurance
industry comprising 35 member associations (whose members account for approximately 88% of the world
insurance premiums), the Insurance Bureau of Canada, (the Canadian national industry association representing
90% by premium of the P&C Insurance business), Insurance Europe, (the European insurance and reinsurance
federation, whose members account for approximately 95% of total premium income in Europe), and theInsurance Council of Australia (representing more than 90% of premium income written by private sector
general insurers).
89
Response p. 10.

26

agents and others who can use the TLD to more intuitively reach end-users. The
TLD also could provide a forum for ratings agencies, journalists, industry analysts,
insurance customers, policy makers, and others who take a professional or personal
interest in this important financial instrument.”

139. Applicant argues that the answer to question 18 (a) shows its intent to make the string
available to a wide range of potential end users, and that it cannot be associated to anarrower community. In that answer, the Applicant states that “no entity or group ofentities has exclusive rights to own or register second level names in this TLD”, andthat “[m]aking this TLD available to a broad audience of registrants is consistent withthe competition goals of the new TLD expansion program…”90.
140. Objector, on the other hand, considers that the answer to question 18 (a) reveals that thestring is targeted to the insurance community.
141. I tend to side with Objector: to my mind, this paragraph does seem to consider the
insurance market as its primary target. The phrase “will be particularly attractive toregistrants providing insurance products and services (one of the world’s largest andmost inclusive industries), and the end users who seek insurance to protect against risk
or otherwise are interested in or are required to have insurance coverage” is an
acknowledgment that there is a group of registrants that, due to their business, constitutea primary target for the string. The Applicant then goes on to offer a non-exclusive listof such primary targets, stating that “registrants may include insurance companies,
brokerages, adjusters, service providers, reinsurance organizations, agents and others
who can use the TLD to more intuitively reach end-users”.
142. Applicant continues: “[t]he TLD also could provide a forum for ratings agencies,
journalists, industry analysts, insurance customers, policy makers, and others who take aprofessional or personal interest in this important financial instrument”. This statement
indicates that the primary target will be the insurance community, and additionally, on asecond level, a slew of other potential entities and persons.
b.

Association between community and the string

143. Regarding association by the public of the community and the string, there are several
facts that clearly point to such association:
144. (i) To begin with, the Beijing GAC Advice identifies this problematic issue whenreferring to the trust that the consumers have in the insurance community. In Beijing,
the GAC warned:“Strings that are linked to regulated or professional sectors should operate in a waythat is consistent with applicable laws. These strings are likely to invoke a level of
implied trust from consumers, and carry higher levels of risk associated with
consumer harm”.

90

Response p. 10.

27

145. In other words, because the string (in this case, <.insurance) is linked to a regulated
sector (the insurance sector), the consumers will assume that the users of such domains
are part of the regulated community. This association by the public between the string
and the regulated community is the cause of the higher level of risk associated with
consumer harm.
146. I also consider of relevance the guidelines provided in Module 4 Guidebook (CPEprocedure) for valuing the nexus between the string and the community. The guidelines
indicate that the matching of the string with the name of the community is a high nexus
indicator: the Guidebook grants a score of three points (out of four) if the names match(i.e. string and community have the same name)91. In our case, the term insurance andthe community invoked provide a clear match.
147. Finally, I am also convinced by the Objector’s argument that a general search in internet
under the word insurance evidences a strong link between the word insurance andmembers of the insurance community. The Objector has presented adequate evidence inthis regard92.
148. In conclusion, I am persuaded that there is a strong association between this string andthe insurance community invoked by the Objector.

E.

Test 4: Likelihood of material detriment149. Having admitted the existence of a clearly delineated community showing a substantial
opposition to a string with which the community is associated, Objector must prove thatthe application creates the likelihood of material detriment to the rights or legitimate
interests of a significant portion of the community to which the string may be explicitly
or implicitly targeted93.
150. Objector and Applicant have pleaded their case on the likelihood of material detriment,
focusing on different interpretations of the GAC findings. Pro memoria: ICANN’s
GAC Committee issued a Warning and subsequently an Advice indicating that theregistry operator should verify three issues in connection with strings linked to financial
insurance, known as the Three Additional Safeguards: the Applicant’s continuous
compliance with licences requirements for participation in the sector in conformity withthe relevant national supervisory authorities.
151. The Objector contends that Applicant intends to operate the string in an open manner,without providing for safeguards restricting the use of the string to entities with therelevant required accreditation/authorization as recommended by the GAC94. This
provokes – in Objector’s opinion – a substantial risk for the consumers and for the
reputation of the insurance community. A risk which is further enhanced by the fact that91

Guidebook at 4-12.
Add. Sub. p. 6.
93
Procedure, section 3.5.4 at 3-34.
94
Add. Sub. p. 7.
9228

Applicant would allow the use of proxy registrations, facilitating the misuse of thestring95. The Objector finally refers to an additional detriment: insurance companies
would be forced to make a substantial number of purely defensive string registrations,in order to protect their reputation.
152. The Applicant’s position is the opposite. Applicant submits that the safeguards provided
in the Application are adequate to protect the interests of the users of the string. It also
avers that there is no evidence that the operation of the string as proposed in the
Application would result in greater or different harm than under the present
circumstances96, and that Objector has not evidenced any material detriment to thealleged community in general. Applicant contends that Objector misstates theimportance of the Beijing GAC Advice97: such advice only suggests that certain strings
should have the Three Additional Safeguards, but does not identify specifically<.insurance as one of them. Furthermore, Applicant argues that the GAC merely
expresses concerns about the strings, but does not suggest precluding or restricting theirdelegation. Finally, it is up to the GAC and the ICANN Board to decide whether such
safeguards should be the subject of recommendations to be followed by the applicants –this is a policy decision that lies with the GAC and the ICANN Board, and not with thePanel. The Applicant concludes that the Beijing GAC Advice cannot be considered as
proof of the likelihood of material detriment to the community98.
153. From the above discussion it follows that my decision must weigh GAC’s
resolutions (a) and consider any alleged lack of preventing measures (b) as well as
alleged increased registration and legal costs for the community (c).
a.

The GAC’s resolutions

Introduction
154. The GAC’s tasks are provided for in the Procedure99:“ICANN’S Governmental Advisory Committee was formed to consider andprovide advice on the activities of ICANN as they relate to concerns ofgovernments, particularly matters where there may be an interaction between
ICANN’s policies and various laws and international agreements or where they
may affect public policy issues.

95

Objection p. 11.
Response p. 11.
97
Add. Sub. p. 7.
98Add. Sub. p. 8.
99
The GAC Advice may take one of the following forms:“I. The GAC advises ICANN that it is the consensus of the GAC that a particular application should notproceed…..
II. The GAC advises ICANN there are concerns about a particular application “dot.example”. The ICANN is
expected to enter into a dialogue with the GAC to understand the scope of concerns. The ICANN is also
expected to provide a rationale for its decision.
III. The GAC advises ICANN that an application should not proceed unless remediated….” (Procedure at 3-3).
96

29

The process for GAC Advice on New gTLDs is intended to address applications
that are identified by governments to be problematic, e.g. that potentially violate
national law or raise sensibilities”.

155. The GAC may provide not only GAC Advice, it may also, at an earlier stage, provide
GAC Early Warnings. A GAC Early Warning typically results from a notice to the
GAC by one or more governments that an application might be problematic, e.g.
potentially violate national law or raise sensibilities. While it is a notice only, theProcedure states:“[However,] a GAC Early Warning should be taken seriously as it raises thelikelihood that the application could be the subject of GAC Advice on New gTLDs(see subsection 1.1.2.7) or of a formal objection (see subsection 1.1.2.6) at a laterstage in the process”100.

156. The GAC has been consistent in stating its concern with regulated sectors. The
Procedure reflects that101:“While definitive guidance has not been issued, the GAC has indicated that strings
that could raise sensitivities include ……those strings that refer to particularsectors such as those subject to national regulation (such as .bank, .pharmacy) or
those that describe or are targeted to a population or industry that is vulnerable toonline fraud or abuse.”

The GAC’s Early Warning
157. On 20 November 2012 a GAC Early Warning was issued to the Applicant at the requestof the Australian Government stating that:“the string (.insurance) is linked to a regulated market sector, and Auburn Park,
LLC does not appear to have proposed sufficient mechanisms to minimize
potential consumer harm”.

158. The GAC’s Early Warning detailed as reason/rationale for the warning the following:“The proposed string (.insurance) is linked to a restricted or regulated market
sector. This market sector is characterized by the ability to complete entire
transactions online, without the need for any face-to-face interaction. In thiscontext, Auburn Park, LLC does not appear to have proposed sufficient protections
to address the potential for misuse.”

The Beijing GAC Advice
159. On 11 April 2013 the GAC issued the Beijing GAC Advice, stating that strings that arelinked to regulated or professional sectors should operate in a way that is consistent
with applicable laws. These strings are likely to invoke a level of implied trust from100
101

Procedure at 1-7.
Procedure at p 1-7.

30

consumers, and carry higher levels of risk associated with consumer harm. Among suchstrings, the GAC identified <.insurance. In addition, the GAC advised that a limited
subset of the above strings are associated with market sectors which have clear/and/or
regulated entre requirements (such as: financial…) in multiple jurisdictions, andproposed the Three Additional Safeguards102.
160. In other words, the operation of the string <.insurance is capable of causing consumer
harm, and should be subject to preventive registration safeguards to avoid said risk.
161. In summary, the GAC finds that strings in regulated sectors are likely to invoke
consumer trust and carry a higher risk that consumer harm will occur. The GAC alsosuggests the need to bring registry policies in line with arrangements off line. To
address these issues, the GAC suggests that the Registry Operators should check theauthorisations/licences of registrants at the moment of registration, consult with therelevant authorities whenever in doubt and conduct periodic post-registration checks103.
162. The Applicant submits that the Beijing GAC Advice has no bearing in this Proceeding,and cannot be a substitute for evidence of material detriment104. I disagree for thefollowing reasons.
163. (i) Applicant contends that the GAC does not make specific reference to any particularstring when speaking of additional safeguards, recommending registration restrictions
only for some of the strings without identifying <.insurance. Applicant adds that the
GAC only expresses concerns about such strings, but does not suggest precluding or
restricting their delegation105.
164. This argument is not sufficiently persuasive: the GAC has consistently expressed its
concerns regarding strings in regulated financial sectors (as evidenced by the footnote in
Guidebook at p 1-8, the GAC Early Warning, and the subsequent Beijing GAC Advice).
The Beijing GAC Advice specifically highlights the financial sector (which includes the<.insurance string) as one where the additional safeguards should apply. Though the
GAC states that these should apply to some of the strings (without specifying whichones), there is no doubt in my mind that <.insurance should be considered as one of thestrings the Beijing GAC Advice was referring to: banking, insurance and securities are
the three traditional regulated sectors within the financial markets.
165. (ii) Applicant’s second argument is that the Beijing GAC Advice only expresses
concerns with certain potentially sensitive strings and only requires the ICANN Board
to enter into a dialogue with the GAC. It does however not require ICANN to adopt anyof the GAC recommendations106. If ICANN does not accept all or part of the Beijing
102

See paragraph 19 for the full text.
Applicant’s parent company, Donuts, responded to the GAC Early Warning and the Beijing GAC Advice byletter concluding that they considered that the safeguards provided by the Applicant were more than sufficient.
Concerning the three measures, discussed above, Donuts believes that such restrictions are inappropriate anddifficult to implement.
104
Add. Sub. p. 6.
105Add. Sub. p. 7.
106
Procedure at p 3-3. In this case the ICANN Board is only expected to provide a rationale for its decision.
103

31

GAC Advice, it will have made a policy decision. Thus, Applicant concludes that thePanel cannot decide by itself what ICANN has left for its own Board to resolve in
dialogue with the GAC.
166. This second argument is also not convincing: the GAC may express its concerns on any
application made and the ICANN Board, after a dialogue with the GAC, may decide toagree or not with the concerns and/or the measures suggested by the GAC. The decision
not to follow the GAC Advice may be premised on any number of reasons, which may
be different from those to be reviewed in a particular objection. Indeed, hypothetically,
one of the factors that may influence the decision not to follow the GAC Advice may be
the very fact that the objection procedure will provide a better venue to analyze theconcerns raised. In my opinion, the refusal by the ICANN Board to implement a GAC
suggestion does not preclude the filing of an objection (whether community orotherwise) to the relevant application.
167. In conclusion, within the terms of the Procedure, the GAC may express concern to aparticular application and it has, indeed, voiced worry that the strings in category 1107
(which includes <.insurance) will invoke a level of implied trust from consumers,
creating higher risks of consumer harm. This is an objective evaluation stated by acommittee comprised of representatives from the national governments, and must bevalued accordingly. The decision as to whether the recommendations made by the GAC
should be implemented or not remains within the competence of the ICANN Board; therelevant application is then subjected to the general objection procedure, in accordancewith the applicable standards. This notwithstanding, the appraisal of the situation
represented by the Beijing GAC Advice remains a fact. As such, it must be taken into
consideration for the purposes of this Proceeding.
***
168. Once I have decided on the weight to be attributed to the Beijing GAC Advice I must
decide on the two arguments raised by the Objector which underpin the alleged
likelihood of a material detriment to the rights of the community.
169. Before entering into the merits of said arguments, I must establish the following
qualifications:
-

-

107

The Objector is not required to prove that the Application will result in actual
material detriment; it must only prove that it creates the likelihood of material
detriment.
The concept of detriment is generally understood to be a wider concept than thatof pure damage, and can include loss, damage, disadvantage or injury.
The detriment must be caused to the rights or legitimate interests of a significant
portion of the community; while the term “rights” is limited to legal rights (arisingby contract or by law), the term “legitimate interests” is wider, encompassing
business and economic interests.

As identified in the Beijing GAC Advice.

32

b.

Lack of preventive measures and consequences170. The worldwide insurance regulations seek to create a safe, or as safe as reasonably
possible, legal environment. Within these regulations, the restrictions imposed by many
jurisdictions on the use of the word insurance try to ensure that the consumer can relyon the regulated nature of the entity with whom he or she is dealing. The GAC hastaken a constant view that the uncontrolled use of financial strings (including<.insurance) create consumer risk. Such risks should be reduced by introducing
preventive safeguards.
171. Applicant claims that it has established effective security measures that are sufficient toprotect the best interests of all users. It allegedly does so by applying the 14 protections
that ICANN demands for all new gTLDS, plus eight additional measures.108 These extra
eight measures are:-

Periodic audit of Whois data for accuracy;
Remediation of inaccurate Whois data, including takedown, if warranted;
A new Domain Protected Marks List [“DPML”] product for trademark
protection;
A new Claims Plus product for trademark protection;
Terms of use that prohibit illegal or abusive activity;
Limitations on domain proxy and privacy service;
Published policies and procedures that define abusive activity; andProper resourcing for all of the functions above.

172. Furthermore, with respect to sensitive strings such as insurance, Applicant intends toadopt four additional steps to shield users from potential misconduct. These are109:---

To supplement the periodic audit referred to above, by a deeper and more
extensive verification of Whois data accuracy, with associated remediation andtakedown processes;
Exclusion of registrars with a history of poor compliance;
Regular monitoring by the registry of registered domains for pharming, phishing,spam, botnets, copyright infringement and other forms of abuse, and remediationand takedown processes; andIn addition to registry-based procedures, requirements that registrars have a
24/07/365 abuse contact, and remediation and takedown processes.

173. In my view, there is, however, a significant limitation in Applicant’s philosophy.
Donuts defends that it is not within the registry operator’s role to control ex ante (i.e. on
registration) compliance by the registrant with any legal restrictions regarding
authorisations/licences that may be applicable. In its response to the Beijing GAC
Advice, Donuts agreed with the GAC’s recommendation that registry operators should
108
109

Response p. 11.
Response p. 11.

33

include in its acceptable use policy that registrants comply with all applicable laws.
However, as Donuts explained:“Registrants must operate within the law and that requirement can be passed down
to them, but registries should not be put in the investigative or law enforcement
roles”110.

174. In my opinion, the safeguards proposed by the Applicant have two main drawbacks:
175. (i) The first drawback is that such safeguards still allow unregulated entities to create
the appearance that they are indeed regulated companies, with an enormous potential for
confusion. Failure to bring registry policies in line with arrangements in place off line
would lead to the existence of a different (and lower) level of protection to online
activities as compared to the level for protection offered by the applicable regulations toentities operating in off line activities. The disparity between both areas (on line versus
off line) increases substantially the potential for confusion and mistakes by the
consumer and abuse of the domain by malicious entities.
176. (ii) The second drawback is that the safeguards provided in the Application are reactive,
tending to remedy any breach of such safeguards by the relevant operator after the fact.
While this may affect the wrongdoer, it will not remedy the harm done to the affectedconsumers, nor the general loss of trust for legitimate on line insurance activities.
177. Use of the string <.insurance leads to the presumption that the user is a member of theinsurance community, and as such, within the regulatory umbrella of mandatory
restrictions and protections. A consumer dealing with an entity perceived as a memberof the insurance community may assume that such member acts within the context of its
regulated activity, and that products or services contracted are made subject to theapplicable regulations.
178. There is a likelihood that entities using the string assume the appearance of being
subject to the relevant consumer-protective regulations, with the aim of taking
advantage from the confusion created in the mind of the end user111. This can only
result in harm to the consumer and to the reputation of the internet activity of theinsurance community. If at present there already is a substantial number of malicious
domain registrations on the basis of second level registrations, it is likely that the110

Response to Beijing GAC Advice p. 11.
The Objector claims that, as articulated in fTLD Registry Services application, the need for verification andvalidation at the time of registration is critical. In its application fTLD states: “Regrettably, the industries
reputation has been marred by criminal and fraudulent activities that undermine consumer trust andenforcement agency confidence. Internet users, many of whom are consumers, are increasingly challenged byopportunists and charlatans who pretend to be legitimate online business. This is a particular concern of theinsurance industry because their consumers are asked to entrust sensitive financial information to external third
parties. Rogue online operators engage in cybersquatting and “phishing” attacks that often involve false
websites designed to mimic legitimate business, including insurance”.

111

34

reliance placed by the consumers on the gTLD domain <.insurance will increase thelevel of malicious use112.
179. Another cause of increased concern is the Applicant’s declared intention to allow theuse of proxy statements. Proxy statements add another barrier to disclosure of theidentity of the string operator. In the context of a highly regulated insurance
environment this can only enhance the potential danger for confusion by the end users
and for malicious abuse of the string. Though Donut’s PIC included a commitment tolimit the use of proxy and privacy registration services in case of malfeasance113, this isagain a reactive approach to the potential damage and not a preemptive one.
180. On the basis of the above, I conclude that the Applicant is not providing adequate
security protection for user interests, and is not acting in the interests of the community.
By failing to provide the safeguards suggested by the GAC, the operation of the string
as proposed will very likely result in a material detriment to the legitimate interests of
the insurance community to develop their business activities through the internet.
c.

Increased registration and legal costs for the community

181. The detriment to the community is not restricted to the damage to the consumers and theloss of reputation in the internet. Under non-business descriptive gTLDs such as <.com,<.bizz etc. the insurance community holds a portfolio of domain registrations of which
85% are purely defensive114. It seems likely that members will be even more inclined tohold a large defensive portfolio in the case of business-related gTLDs such as insurance.
Though Donuts has provided in its PIC for a Donuts Protected Marks List (DPML), I
agree with the Objector that the protection is limited to the exact trademark, thus
leaving intact the need for further defensive registrations115.
182. In consequence, because of the strong association between the string and the insurance
members, I am persuaded by the Objector that the members of the community will findit necessary to file and maintain a substantive number of purely defensive domain
registrations.
183. Applicant claims that there is no proof that this new gTLD will create any greater ordifferent harm to the industry than exists today. In this respect, Applicant submits that atpresent there are over 116,000 uses of the term insurance at second level116.
184. I do not find the argument persuasive: to begin with, Objector does not have to provethat the operation of the string creates a greater or different harm to the industry. It
merely has to prove that there is a likelihood that it will create a material detriment to
the interests of the community. Objector has proven that a substantial number of
112

The matter is not hypothetical; the Objector has shown numerous cases of abusive domain registrations
related to insurance resulting in URDP filings. See annex H Objection.
113
Donut PIC, at 3.6.
114
As alleged by Objector - Objection p. 13.
115
Objection p. 13.
116
As stated by J. Nevett – annex B exhibit 2 Response.

35

malicious second level domain registrations exist117. It seems reasonable to consider
that a gTLD, which has a stronger presumption of representing a duly accredited entity,
will
attractincreased
malicious
attention.
While,
forexample,<firstnationalinsurance.com may give rise to confusion among the public,<firstnational.insurance holds a much stronger presumption that the entity is a properly
registered insurance entity. The risk for consumer confusion is thus increased, andtherefore the likelihood that it will be subject to abuse if adequate protections such as
those prescribed in the Beijing GAC Advice are not taken.
185. In conclusion, I am persuaded that the Applicant has not committed to institute effective
security protection for user interests, and is not acting in the interests of the insurance
community. The Application, if allowed, would facilitate an increase in abusive
behavior (such as cybersquatting, typosquatting, phishing…) and would result inmaterial detriment to the community through loss of consumer trust, additionaldifficulty in the development of the online business and need to enter into defensive
registrations.
***
Additional issues
186. First additional issue: given that the Objector has prevailed on the other arguments, I
will not address the allegations made by the parties in relation to the concerns raised by
the Demand Media – Donuts strategic relationship118.
187. Second additional issue: On 3 December 2013, after submission of this determination to
the Centre for review, the Applicant submitted ex tempore a communication119 bringing
to my attention a letter from ICANN to the GAC, stating that ICANN is intending toaccept the GAC’s Beijing Advice concerning Category 1 and Category 2 Safeguards.
These safeguards would be included in the Specification 11 to the Registry Agreement
to be executed between Applicant and ICANN should the string be awarded to
Applicant. Applicant submits that to the extent ICANN so adopts the safeguards
Applicant will be obliged to comply with such safeguards. Thus, to the extent Objector
claims material detriment based on Applicant’s alleged lack of GAC-recommended
safeguards, ICANN’s recent action has rendered that portion of the Objection moot.
188. By emails of 4 December and 5 December 2013, the Objectors (AIA and FSR120) inthese consolidated Objection Proceedings alleged that (i) the pleadings were untimely
and should be ignored, (ii) the dialog between the GAC and ICANN is not yet finalized,
and that the issuance of the letter does not mean that the GAC is satisfied, (iii) the
specific contractual provisions are not fully determined, and are nonetheless likely to be
insufficient to prevent a likelihood of material detriment, and (iv) the principles

117

See Objection, Annex H.
See paragraphs 69-70.
119
In relation to both proceedings: Exp. 432/ICANN/49 (c. 507/ICANN/124).
120
FSR by express declaration of support for the allegations made by AIA.
118

36

established in the determinations relating to .bank, .architect and .medical would lead tothe maintenance of the Objection.
189. I note that the pleadings submitted by the Applicant are untimely: the draft Expert
Determination had already been submitted to the Centre for review, and no further
submissions by the parties should, as a general principle, be allowed. Exceptionally, I
would be prepared to review my conclusions based on subsequent, unforeseen events if
the events might undisputedly and materially affect the analysis made.
190. This is not, however, the case.
191. The letter from ICANN to the GAC identifies the GAC Category 1 strings more
specifically, identifying a list of strings (which includes .insurance) under the heading“Highly-Regulated sectors/Closed Entry requirements in multiple jurisdictions”, andwith respect to which the safeguards 1-8 of the Beijing GAC Advice are applicable.
192. However, a review of the safeguards to be included in Specification 11 reveal that
ICANN is considering, in relation to the safeguards 6 (validation of licenses atregistration), 7 (consultation with relevant authorities when in doubt) and 8 (periodic
supervision of maintenance of licenses) of the Beijing GAC Advice the implementationof a self-validation structure. This self-validation structure means that the registrationagreement between the registrar and the registrant would include, among others, thefollowing provisions:--

The obligation by registrant to comply with all applicable laws.
The registrar’s obligation to notify registrants of the requirement to comply
with all applicable laws.
A representation by the registrant that it possesses any necessary
authorizations, charters, licenses and/or other related credentials forparticipation in the sector associated with the string.
The registrant’s obligation to report to the registrar any material changes to thevalidity of the authorizations, charters, licenses and/or other related credentials
for participation in the sector associated with the string.

193. The above means that the registrar will not make any review and validation of theauthorizations, licenses, charters etc. of the registrants on registration, nor at any timeafter registration. The registrar will take on trust the self-validation declaration made by
the registrant, and would expect to receive notice from the registrant of any change toits status under any regulations applicable to the registrant. Thus, there are no barriers to
any malicious entity wishing (i) to effect untrue or misleading statements, or (ii) to fail
to communicate any change in its status; and therefore appear in the market under thestring .insurance as a regulated entity.
194. I have already concluded above that the lack of adequate validation at the time ofregistration may allow unregulated entities to maliciously create the appearance thatthey are indeed regulated companies, with an enormous potential for confusion. Failure
to bring registry policies in line with arrangements in place off line would lead to theexistence of a different (and lower) level of protection to online activities as compared37

to the level for protection offered by the applicable regulations to entities operating in
off line activities. The disparity between both areas (on line versus off line) increases
substantially the potential for confusion and mistakes by the consumer and abuse of thedomain by malicious entities.
195. On the basis of the above, I am not persuaded that the Applicant’s ex tempore
allegations should modify my original conclusions.

7.

CONCLUSION

196. I find that Objector has proven that, in relation to the Objection presented against
Applicant’s application for the gTLD <.insurance:-

Objector has standing to object, andThe four following tests have been met:·
the community affected by the string is a clearly delineated community,·
there is substantial opposition from the community,·
there is a strong association between the string and the community, and·the application creates a likelihood of material detriment to the rights orlegitimate interests of a significant portion of the community to which thestring is explicitly or implicitly targeted.
Therefore, Objector has prevailed and the Objection is upheld.

8.

COSTS

197. Pursuant to article 14 (e) of the Attachment, upon termination of the proceedings, theDispute Resolution Service Provider shall refund to the prevailing party, as determinedby the panel, its advance payment in costs. The Objector has prevailed, and thus shallhave its advance costs refunded.

38

DECISION

For the reasons given above, and in relation to the Objection filed by The Financial
Services Roundtable as Objector, against the application filed by Auburn Park, LLC, as
Applicant, for the gTLD <.insurance, I find and declare that:I.

The Objector has prevailed and the Objection is upheld;II.

The Objector is entitled to have its advance payment of costs refunded by theCentre.

Date: 14 January 2014

Signature:

Mr. Juan Fernández-Armesto

39