THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/411/ICANN/28

PROF. ALAIN PELLET, INDEPENDENT OBJECTOR(FRANCE)vs/
SILVER GLEN, 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.

ICC Case No. EXP/411/ICANN/28

PROFESSOR ALAIN PELLET, INDEPENDENT OBJECTOR
Objector(France)vs

SILVER GLEN, LLC
Applicant/Respondent(USA)_________________________________
EXPERT DETERMINATION_________________________________

Professor James Crawford (Chair)
Professor Maria Gavouneli (Co-Expert)
Mr James Bridgeman (Co-Expert)

26 November 2013

TABLE OF CONTENTSTABLE OF ABBREVIATIONS .................................................................................................. 3
THE EXPERT PANEL ................................................................................................................ 4
IDENTIFICATION OF THE PARTIES AND THEIR REPRESENTATIVES .................... 4I.

INTRODUCTION............................................................................................................. 7

II.

PROCEDURAL HISTORY ............................................................................................. 8

III.

THE RELEVANT PROVISIONS ................................................................................. 10

IV.

THE OBJECTION AND THE APPLICANT’S RESPONSES .................................. 10

V.

(a)

The Application .................................................................................................... 10(b)

The Objection........................................................................................................ 11(c)

The Applicant’s Response .................................................................................... 11(d)

The Independent Objector’s Additional Written Statement ................................. 12(e)

The Applicant’s Response to the Additional Written Statement .......................... 13

THE PANEL’S DECISION ........................................................................................... 13(a)

The role of good faith ........................................................................................... 15(b)

Relevant principles of international law ............................................................... 15(c)

Application of the Independent Objector’s arguments to the facts of this case .... 18(d)

Remedies available ............................................................................................... 22(e)Decision ................................................................................................................ 23

2

TABLE OF ABBREVIATIONSAGBgTLD Applicant Guidebook

Applicant

Silver Glen, LLC, Applicant/Respondent (USA)CentreInternational Centre for Expertise of the ICC

DNSSEC

Domain Name System Security Extensions

DPML

Domain Protected Marks List

DRSP

dispute resolution service provider

GAC

ICANN Governmental Advisory Committee

GuidebookgTLD Applicant Guidebook

gTLD

generic top-level domain

ICANN

Internet Corporation for Assigned Names and Numbers

ICC

International Chamber of Commence

ICESCRInternational Covenant on Economic, Social and Cultural Rights

IO

Independent Objector

Practice Note Practice Note on the Administration of Cases under the New gTLD Dispute
Resolution Procedure
Procedure

New gTLD Dispute Resolution Procedure

Rules

Procedure and the Rules for Expertise of the ICC

TLD

top-level domain

UDHR

Universal Declaration of Human Rights

UDRP

Universal Domain-Name Dispute-Resolution Policy

3

THE EXPERT PANEL
NameProf. James Crawford

Address

LAUTERPACHT CENTRE FOR INTERNATIONAL LAW
5 Cranmer Road

City, Country

Cambridge CB3 9BL, United Kingdom

TelephoneEmailjrc1000@cam.ac.uk

NameProf. Maria Gavouneli

AddressGAVOUNELI MICHA LAW FIRM
Karneadou 43

City, Country

Athens 10676, Greece

TelephoneEmailmgavoun@law.uoa.gr

Name

Mr James Jude Bridgeman

Address

JAMES BRIDGEMAN, BARRISTER AT LAW The Law Library,
The Four Courts, Inns Quay

City, Country

Dublin 7, Ireland

TelephoneEmailbridgeman@adreurope.com

IDENTIFICATION OF THE PARTIES AND THEIR REPRESENTATIVES
Objector
Name

Prof. Alain Pellet, Independent Objector

Contact
Address

16, Avenue Alphonse de NeuvilleCity, Country

92380 Garches, France

TelephoneEmailcontact@independent-objector-newgtlds.org

4

Objector’s RepresentativesName

Ms Héloïse Bajer-Pellet

Contact
Address

15, Rue de la BanqueCity, Country

75002 Paris, France

Telephone+33 1 53 45 47 47

Emailavocat@bajer.fr

Name

Mr Daniel Müller

Contact
Address

20, Avenue du Général de Gaulle

City, Country

78290 Croissy sur Seine, France

Telephone+33 1 39 76 52 29

Emailmail@muellerdaniel.eu

Name

Mr Phon van den Biesen

Contact
Address

De Groene Bocht, Keizersgracht 253

City, Country

1016 EB Amsterdam, The Netherlands

Telephone+31 20 7 37 18 69

Emailphonvandenbiesen@vdbkadvocaten.eu

Name

Mr Sam Wordsworth, QC

Contact
Address

24 Lincoln’s Inn Fields

City, Country

London, WC2A 3EG, United Kingdom

Telephone+44 20 7813 8000

Email

SWordsworth@essexcourt.net

5Applicant
Name

Silver Glen, LLC

Contact person

Daniel Schindler, Jon Nevett

Address

10500 NE 8th Street, Suite 350

City, Country

Bellevue, WA 98004, USA

Telephone+1-424-254-8537

Emailsilverglen@donuts.co, secondary@donuts.co

Applicant’s RepresentativeName

The IP & Technology Legal Group, P.C. dba New gTLD Disputes
http://www.newgtlddisputes.com

Contact person

John M. Genga, Don C. Moody

Address15260 Ventura Blvd., Suite 1810

City, Country

Sherman Oaks, CA 91403, USA

Telephone+1-888-402-7706; +1-818-444-4582

Emailjohn@newgtlddisputes.com, don@newgtlddisputes.com

6

I.

INTRODUCTION

1. In 2012, the Internet Corporation for Assigned Names and Numbers (ICANN) opened
applications for new generic top-level domains (gTLDs). This Expert Determination
relates to one of those applications and the Objection filed against it by the Independent
Objector.
2. The Independent Objector is empowered to file objections against ‘highly objectionable’gTLD applications to which no objection has otherwise been filed. The Independent
Objector ‘does not act on behalf of any particular persons or entities, but acts solely in thebest interests of the public who use the global Internet’.1 Objections may be of two types:(i) Limited Public Interest Objections and (ii) Community Objections.2 The Independent
Objector is currently Professor Alain Pellet.
3. The Application in question here was made by Silver Glen, LLC (Applicant), for thegTLD <.healthcare> (Application ID 1-1492-32589). The Applicant is a wholly-owned
subsidiary of Dozen Donuts, LLC, which has applied for 307 gTLDs, both directly andthrough various subsidiaries. A number of those applications relate to the health sector,
but many are in unrelated sectors.
4. The Independent Objector brought a Limited Public Interest Objection against that
Application. The basis of such an objection is that the ‘applied-for gTLD string iscontrary to generally accepted legal norms of morality and public order that arerecognized under principles of international law’.3
5. Pursuant to Article 3(c) of the ‘New gTLD Dispute Resolution Procedure’ (Procedure),4Limited Public Interest Objections are administered by the International Centre forExpertise (Centre) of the International Chamber of Commerce (ICC). By applying for a
1

gTLD Applicant Guidebook, version 2012-06-04, §3.2.5, available at http://newgtlds.icann.org/en/applicants/agb(Guidebook).
2

Ibid.

3

Guidebook, §3.2.1.

4

New gTLD Dispute Resolution Procedure, version 2012-06-04, available at
http://newgtlds.icann.org/en/applicants/agb (Procedure).

7

gTLD, the Applicant accepted the applicability of the Procedure and the Rules forExpertise of the ICC (Rules), as supplemented by the ICC. The ICC has issued a ‘PracticeNote on the Administration of Cases under the New gTLD Dispute Resolution
Procedure’ (Practice Note), which is to be considered such a supplement.5 By filing its
Objection, the Independent Objector likewise accepted the applicability of those
instruments.6

II.

PROCEDURAL HISTORY

6. The Applicant made its Application on 13 June 2012 and the Independent Objector filed
the Objection on 12 March 2013.
7. As required by Article 9(a) of the Procedure, the Centre conducted an administrative
review of the Objection and determined that it complied with Articles 5 to 8 of theProcedure and the Rules on 29 March 2013. The Objection was thus registered forprocessing pursuant to Article 9(b) of the Procedure.
8. On 15 April 2013, the Centre invited the Applicant to file a response within 30 days; theApplicant did so on 15 May 2013.
9. The Chairman of the Standing Committee of the Centre appointed Lord Collins ofMapesbury as Chair of the Panel and Professor Maria Gavouneli and Mr James Jude
Bridgeman as Co-Experts of the Panel on 12 June 2013 and by letter dated 18 June 2013,
the Centre advised the parties that such appointment had been made. On 10 July 2013,
Lord Collins resigned as Chair, and subsequently on 19 July 2013 the Chairman of theStanding Committee of the Centre appointed Professor James Crawford as Chair of the
Panel. The Centre informed the parties of this appointment by letter dated 23 July 2013.

5

ICC Practice Note on the Administration of Cases under the New gTLD Dispute Resolution Procedure, version
2012-01-11, available at http://www.iccwbo.org/products-and-services/arbitration-and-adr/expertise/introduction-toicann-new-gtld-dispute-resolution (Practice Note).
6Procedure, Arts. 1(c), 1(d) and 4(b)(iii).

810. As no objection to the appointment of Professor Crawford was received and as the parties
had paid their advance payments of the estimated costs, the Centre confirmed the fullconstitution of the Panel on 31 July 2013 and transferred the file to the Panel on the sameday. In accordance with Article 21(a) of the Procedure, the Panel is required to make‘reasonable efforts’ to ensure that the Expert Determination is rendered within forty-fivedays of that date.
11. On 2 August 2013, the Independent Objector requested that the Panel authorize him tosubmit an additional written statement pursuant to Article 17(a) of the Procedure. On
5 August 2013, the Panel authorized the Independent Objector to file further
observations, responsive to the Applicant’s submissions, by 12 August 2013 and theApplicant to file further observations, similarly responsive, by 19 August 2013.
12. On the same date the Panel informed the parties that the Objection was not dismissed
under the ‘quick look’ procedure detailed in section 3.2.2.3 of the ‘gTLD Applicant
Guidebook’ (Guidebook), which is ‘designed to identify and eliminate frivolous and/or
abusive objections’.
13. The Independent Objector subsequently filed an Additional Written Statement dated 12
August 2013, and the Applicant filed a Response to the Additional Written Statement
dated 19 August 2013.
14. The language of all submissions and proceedings is English pursuant to Article 5(a) of
the Procedure. All communications by the parties, the Panel and the Centre were
submitted electronically pursuant to Article 6(a) of the Procedure. No hearing has takenplace, nor was one requested by the parties. The Expert Determination was rendered to
the Centre within the 45-day time limit as requested by Article 21(a) of the Procedure.

9

III.

THE RELEVANT PROVISIONS

15. The Guidebook sets out the grounds upon which an applied-for gTLD string may beconsidered contrary to generally accepted legal norms relating to morality and publicorder that are recognized under principles of international law. It provides:
The grounds upon which an applied-for gTLD string may be considered contrary
to generally accepted legal norms relating to morality and public order that arerecognized under principles of international law are:•

Incitement to or promotion of violent lawless action;•

Incitement to or promotion of discrimination based upon race, color,
gender, ethnicity, religion or national origin, or other similar types of
discrimination that violate generally accepted legal norms recognizedunder principles of international law;•

Incitement to or promotion of child pornography or other sexual abuse ofchildren; or•A determination that an applied-for gTLD string would be contrary to
specific principles of international law as reflected in relevant international
instruments of law.7

16. The Objection here is based on the fourth ground viz. that the applied-for gTLD string
would be contrary to specific principles of international law as reflected in relevantinternational instruments of law.

THE OBJECTION AND THE APPLICANT’S RESPONSES

IV.

(a)

The Application

17. The Applicant has made a standard, as distinct from a community-based, application andproposes an ‘open’, commercially-based gTLD. The Application states, inter alia, that:
This TLD is a generic term and its second level names will be attractive to a varietyof Internet users. Making this TLD available to a broad audience of registrants is
7

Guidebook, §3.5.3.

10

consistent with the competition goals of the New TLD expansion program, andconsistent with ICANN’s objective of maximizing Internet participation… [W]e willencourage inclusiveness in the registration policies for this TLD. In order to avoid
harm to legitimate registrants, [we] will not artificially deny access, on the basis ofidentity alone (without legal cause), to a TLD that represents a generic form ofactivity and expression…
As detailed throughout this application, we have struck the correct balance between
consumer and business safety, and open access to second level names…
We will use our significant protection mechanisms to prevent and eradicate abuse,
rather than attempting to do so by limiting registrant eligibility…
[We] will specifically adhere to ICANN-required registration policies and willcomply with all requirements of the Registry Agreement and associated specifications
regarding registration policies. Further, [we] will not tolerate abuse or illegal activity
in this TLD, and will have strict registration policies that provide for remediation andtakedown as necessary.8(b)

The Objection

18. The Independent Objector’s arguments are essentially that there is a right to healthestablished under principles of international law and reflected in identified international
instruments; that healthcare is an essential aspect of the right to health; that there is an
obligation on both states (government and local government) and individuals to respect
the right to health; that access to health-related information and goods is essential to theright to health; and that the establishment of <.healthcare> as an open gTLD without
restrictions or proper safeguards demonstrates that the Applicant is not conscious of its
responsibilities, which may compromise the right to health. He concludes that an open
gTLD is inappropriate.9(c)

The Applicant’s Response

19. The Applicant confirms that it proposes to ‘make the <.healthcare> registry open to all
consumers, creating paths of communication more expansive than the narrow use to8

Application, answers 18(a) and 18(b).

9Objection, pp. 7-15.

11which Objector believes the TLD should be put’.10 It argues that the fourth ground on
which gTLDs can be considered contrary to international legal norms relating to morality
and public order ‘does not serve as a simple “catch-all”’11 but that, read in accordancewith the eiusdem generis principle, a gTLD, to fall within the fourth category, ‘must
violate precepts of international law closely akin to those proscribing such severetransgressions as lawless violence, discrimination based on race or similar inborn
characteristics, or child pornography and sexual abuse’.12 The Applicant argues that‘[n]owhere ... does the Objector identify anything about the string, or regarding how the
Applicant plans to administer it, that runs contrary to any specific principle ofinternational law’.13(d)

The Independent Objector’s Additional Written Statement

20. In his Additional Written Statement, the Independent Objector argues that the Safeguard
Advice issued by the ICANN Governmental Advisory Committee (GAC) on 11 April
2013 supports his position.14 He rejects the Applicant’s assumption that Limited Public
Interest Objections are exclusively reserved for objections to the very term used for thestring,15 and further argues that ‘the Applicant pays no attention to the fact that the IO’s
Objection takes as its starting point that “Health” is a crucial, existential need for eachand every human being’.16 The Independent Objector also argues that the eiusdem generis
principle is not applicable and that the fourth category ‘is of a quite different nature thanthe previous three’.17

10

Response, p. 5.

11

Response, p. 9.

12

Response, p. 10 (emphasis original).

13

Response, p. 8 (emphasis original).

14

Additional Written Statement, p. 8.

15Additional Written Statement, pp. 9-10.

16Additional Written Statement, p. 10.

17Additional Written Statement, p. 11.

12

(e)

The Applicant’s Response to the Additional Written Statement

21. In its further Response the Applicant states that it does not disagree that ‘heath is afundamental human right, codified in significant source [sic] of international law’.18
However, it argues that the Independent Objector provides no evidence that the string, or‘Donuts’ plans for it as stated in the Application, would violate any international legal
protection’.19 In the Applicant’s view ‘the Guidebook does not allow the Independent
Objector or this Panel to look at anything past the string itself other than the
Application’.20 It further argues that the document issued by the GAC on 11 April 2013‘expressly does not call for disallowance of a <.HEALTHCARE> string’,21 and that inany event ICANN has no obligation to adopt the GAC’s recommendations regarding thestring.22

V.

THE PANEL’S DECISION(a) The Panel’s mandate
22. The Independent Objector has asked this Panel to determine that the applied-for gTLD
string would be contrary to specific principles of international law as reflected in relevantinternational instruments.
23. An initial question is whether the Panel is restricted to the string itself or the string in thecontext of the Application, or something more.
24. The emphasis in the Guidebook is on the gTLD string itself, although it is explained that
the Panel can also take into account the content of the Application:

18

Response to the Additional Written Statement, p. 2 (emphasis original).

19

Response to the Additional Written Statement, p. 2 (emphasis original).

20

Response to the Additional Written Statement, p. 1 (emphasis original).

21

Response to the Additional Written Statement, p. 2 (emphasis original).

22

Response to the Additional Written Statement, p. 5.

13

The panel will conduct its analysis on the basis of the applied-for gTLD string itself.
The panel may, if needed, use as additional context the intended purpose of the TLD
as stated in the application. 23
By implication a panel may not go further and take into account other matters as context.
25. The Applicant’s position is that the Panel must focus on the string itself. It stresses thatthe word ‘healthcare’ is not in itself objectionable and that this has been admitted by the
Independent Objector.

But in the Panel’s view it should take a somewhat broader

approach and look at how the TLD will be operated as proposed in the Application.
26. This approach is supported by the Applicant’s statement in the Response: ‘To prevail the
Objection [sic] must discharge that burden and prove that the string or its intended use, as
stated in the application, runs afoul of legal strictures against the type of abhorrent
conduct described in the objection standard. AGB §§ 3.5, 3.5.3.’24
27. A further question arises as to the scope of this Panel’s remedial authority, given that the
Independent Objector has not simply sought a determination that the Objection is valid
but has also included an alternative submission that the Objection be upheld for so longas the Applicant has not provided solutions for the serious objections raised in the
Objection.25
28. Guidebook §3.5.3 contemplates that an Objection will either fail or succeed outright; itneither permits nor prohibits a conditional finding such as the alternative remedy soughtin the Objection. Article 21(d) of the Procedure is similarly restricted: ‘The remedies
available to an Applicant or an Objector pursuant to any proceeding before a Panel shallbe limited to the success or dismissal of an Objection and to the refund by the DRSP to
the prevailing party... of its advanced payment(s) of Costs’.

23

Guidebook, §3.5.3.

24

Response, p. 8.

25

Objection, p. 15.

14

(a)

The role of good faith

29. In its Response, the Applicant made an attack on the good faith of the Independent
Objector based primarily on writings published by a member of the Independent
Objector’s staff. The Independent Objector having responded in appropriate terms tothese remarks, they were not pressed by the Applicant in its Response to the Additional
Written Statement.
30. In the Panel’s view there is no basis whatever for any allegations of bad faith oroverreaching on the part of the Independent Objector in relation to this novel procedure.
The allegations ought not to have been made and in the event, as noted, were not pressed.
We need say nothing more about them.

(b)

Relevant principles of international law

31. Paragraph 3.5.3 of the Guidebook states that:An expert panel hearing a Limited Public Interest objection will consider whether
the applied-for gTLD string is contrary to general principles of international law
for morality and public order.
It lists a number of instruments containing general principles, stressing that they are only
examples. In the present case, the Independent Objector relies specifically on the
Universal Declaration of Human Rights (UDHR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR).
32. As noted already, the Objection is based on ground four: ‘an applied-for gTLD string
would be contrary to specific principles of international law as reflected in relevantinternational instruments of law’.
33. The phrase ‘general principles of international law for morality and public order’ is not
self-explanatory, although the guidance given in the Guidebook takes matters a little
further. There is no reason to doubt that there could be principles of international law

15

recognizing norms of morality and public order and pertaining to the selection of global
domain names; for example, in relation to child pornography26 or traffic in illicit drugs.27
34. In this regard the Panel agrees with the Independent Objector that there is no room for theapplication of the eiusdem generis rule in order to support a restrictive interpretation of
the fourth ground of objection listed in §3.5.3 of the Guidebook. Even if there could bediscerned a genus among the first three grounds (which the Panel does not accept), there
is no reason not to give the fourth ground its full effect, provided it is established that thegTLD in question is indeed ‘contrary to specific principles of international law asreflected in relevant international instruments of law’ (emphasis added).28
35. On the other hand it must be emphasized that what is at issue here is the propriety of theapplied-for string and the regulation of the proposed <.healthcare> gTLD, and not thepolicy of ICANN in opening up new gTLDs in domains such as <.healthcare>, a policy
which potentially applies to dozens or even hundreds of terms.
36. The Independent Objector relies on the right to health. He argues that health is not justanother commodity, that it is a human right recognized since 1948 in Article 25 of the
UDHR.29 The relevant provision is rather narrowly formulated:
1. Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medicalcare and necessary social services...
The right is also recognized in other instruments, most notably in Article 12 of the
ICESCR:30

26

Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3.

27

United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December
1988, 1582 UNTS 164.
28

It may be noted that even in those legal systems which recognize the eiusdem generis rule it has been described as‘nothing but a guide, and sometimes an uncertain guide’ to construction: James Buchanan & Co Ltd v Babco
Forwarding & Shipping (UK) Ltd [1978] AC 141, 160; [1977] 74 ILR 574, 602 (Lord Salmon); and see AD
McNair, ‘Application of the Ejusdem Generis Rule in International Law’, (1924) 5 BYIL 181, 182.
29

Objection, p. 8.

30International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3.

16

1. The States Parties to the present Covenant recognize the right of everyone tothe enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve
the full realization of this right shall include those necessary for:…
(d) the creation of conditions which would assure to all medical service
and medical attention in the event of sickness.
37. Both these instruments are expressly mentioned in the Guidebook. The Panel takes themas reflecting established principles for the purpose of this Determination, noting that the
UDHR is widely cited and the ICESCR is widely ratified.
38. ICESCR Article 12(2)(d) obliges states to create the conditions ‘which would assure to
all medical service and medical attention in the event of sickness’. The United Nations
Committee on Economic, Social and Cultural Rights defines ‘health’ as including‘healthcare’.31 The Independent Objector argues that access to health-related information,
as well as access to health-related facilities, goods and services, are essential elements ofa right to health.
39. The Independent Objector further argues that:
It is clear that the implementation of the obligations discussed above may behindered, and therefore the right to health may be compromised in case any entity
would launch a .Healthcare TLD without having given due consideration to thefundamental rights and related obligations that are at stake and without having
considered how to include mechanisms that at all times would rather strengthen
than hinder these obligations and fundamental rights.32
40. In the Panel’s view, even if these are components of the ‘right to health’, such rightremains a very general one and does not mandate any particular arrangement of theinternet or the advance prohibition of any term such as <.health> or <.healthcare>,31

Committee on Economic, Social and Cultural Rights, General Comment No. 14 (2000), ‘The right to the highest
attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights)’,
UN doc. E/C.12/2000/4, especially paras. 9-11 (General Comment).
32

Objection, p. 11.

17

provided there are adequate safeguards appropriate to the sensitive character of the<.healthcare> gTLD. This is the case regardless of whether the right imposes obligations
only on states or also on individuals and other entities such as ICANN. After all the
Guidebook treats the relevant international standards as having to be complied with by
gTLD applicants, and in effect by ICANN itself, and appropriately so.
41. The General Comment on the right to health issued by the Committee on Economic,
Social and Cultural Rights states that:
Violations of the obligation to protect follow from the failure of a State to take allnecessary measures to safeguard persons within their jurisdiction from
infringements of the right to health by third parties. This category includes suchomissions as the failure to regulate the activities of individuals, groups or
corporations so as to prevent them from violating the right to health of others; thefailure to protect consumers and workers from practices detrimental to health, e.g.
by employers and manufacturers of medicines or food; the failure to discourage
production, marketing and consumption of tobacco, narcotics and other harmful
substances; the failure to protect women against violence or to prosecute
perpetrators; the failure to discourage the continued observance of harmful
traditional medical or cultural practices; and the failure to enact or enforce laws toprevent the pollution of water, air and soil by extractive and manufacturingindustries.33
The General Comment does not provide a binding interpretation of Article 12 of the
ICESCR, but that is not the real point. The real point is that there is no reason or basis toanticipate that an open gTLD would be such that it would be signally abused, provided
there are safeguards if and when abuse occurs. If the granting of a gTLD is not itself abreach of the right to health, then what is stated in the above paragraph has nothing tooperate on.

(c)Application of the Independent Objector’s arguments to the facts of this case

42. There is, as the Independent Objector concedes, nothing untoward in the gTLD<.healthcare> as such. Nor does the further information set out in the Application give
serious cause for concern.
33

General Comment, para. 51.

18

43. The Applicant emphasises the right of those who will apply to it for second level names
to freedom of expression.34 In its response to question 18(a) in its Application, theApplicant states:
We recognize some applicants seek to address harms by constraining access to theregistration of second level names. However, we believe attempts to limit abuseby limiting registrant eligibility is unnecessarily restrictive and harms users bydenying access to many legitimate registrants. Restrictions on second leveldomain eligibility would prevent law-abiding individuals and organizations fromparticipating in a space to which they are legitimately connected, and would
inhibit the sort of positive innovation we intend to see in this TLD.
However, it goes on to state that:As detailed throughout this application, we have struck the correct balance
between consumer and business safety, and open access to second level names.
By applying our array of protection mechanisms, Donuts will make this TLD aplace for Internet users that is far safer than existing TLDs. Donuts will strive tooperate this TLD with fewer incidences of fraud and abuse than occur inincumbent TLDs. In addition, Donuts commits to work toward a downward trend
in such incidents.
44. In the Panel’s view it is necessary for the Applicant to have, at the least, a process bywhich unlawful, misleading or deceptive entries can be corrected, but it is desirable that
the Applicant should go further and include additional safeguards appropriate to thesensitive character of the proposed <.healthcare> gTLD (see further paragraphs 50-51).
45. The Applicant takes the position that ‘attempts to limit abuse by limiting registrant
eligibility is unnecessarily restrictive and harms users by denying access to many
legitimate registrants’. While the Panel notes that the Applicant proposes to establish aprocess to protect internet users, as reflected in the commitments it has made in its
Application,35 it is desirable that it should go further than the commitments it has made to
date.

34

See e.g. Declaration of John Nevett dated 15 May 2013, para. 8. (Annex B to the Response).

35

Application, answers 18(a), 18(b) and 29.

19

46. ICANN for its part has accepted that there are particular needs in dealing with sensitive
domain names, including the health sector. It has specified the following further
safeguards:
1.
2.
3.

Controls to ensure proper access to domain management functions;24⁄7⁄365 abuse point of contact at registry;
Procedures for handling complaints of illegal or abusive activity, including
remediation and takedown processes;
4. Thick WhoIs;
5. Use of the Trademark Clearinghouse;
6. A Sunrise process;7. A Trademark Claims process;8. Adherence to the Uniform Rapid Suspension system;
9. Adherence to the Uniform Domain Name Dispute Resolution Policy;
10. Adherence to the Post Delegation Dispute Resolution Policy;
11. Detailed security policies and procedures;
12. Strong security controls for access, threat analysis and audit;
13. Implementation DNSSEC; and14. Measures for the prevention of orphan glue records.36
47. In addition, the Applicant has offered further commitments of its own:
1.
2.
3.
4.
5.
6.
7.
8.

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.37

It adds that:1.

2.

For this string, to supplement the periodic audit documented above, a deeper
and more extensive verification of WhoIs data accuracy, with associatedremediation and takedown processes.
Exclusion of registrars with a history of poor compliance;

36

Application, answer 18(a).

37Application, answer 18(a).

20

3.

4.

Regular monitoring by the registry of registered domains for pharming,
phishing, spam, botnets, copyright infringement and other forms of abuse,and remediation and takedown processes; andIn addition to registry-based procedures, requirements that registrars have a24⁄7⁄365 abuse contact, and remediation and takedown processes.38

48. In the Panel’s view, these are substantial commitments which, if respected, should
alleviate many of the concerns expressed by the Independent Objector. It is for ICANN,
advised as necessary by the GAC, to ensure, first, that these commitments are met, andsecondly that any additional commitments which may prove in practice necessary anddesirable to protect consumers in this sensitive area are required to be made.
49. On the other hand the Panel considers that as a general matter it is reasonable for an
applicant conforming with applicable ICANN policies to leave questions of legality andaccuracy of offerings under a given gTLD to be resolved by some subsequent procedure
rather than doing so in advance. It may be noted in this context that the Universal
Domain-Name Dispute-Resolution Policy (UDRP) is a precedent for a dispute resolution
mechanism that can determine issues of alleged unlawfulness or abuse, provided thatappropriate guidelines are set and definitions established.
50. Both parties rely on the position taken by the GAC at the Beijing meeting in 2013. For
the Independent Objector, in the Safeguard Advice issued by the GAC on 11 April 2013:
the GAC advises that extensive additional safeguards should be put in place for awhole range of TLDs. The .healthcare TLD is included in this part of the advice(Annex 1, Category 1 of the GAC’s advice). Also, the GAC advises to allow
registration restrictions for particular strings – among them .healthcare – which‘should be appropriate for the types of risks associated with the TLD (Annex 1,
Category 2 of the GAC’s advice). The GAC Safeguard Advice confirms theconcerns expressed by the IO in its Objection and the sensitivity of a new‘.healthcare’ gTLD...39
For the Applicant:38

Application, answer 18(a).

39Additional Written Statement, p. 8.

21

The GAC stated in its advice, however, that it recommends registration
restrictions for only ‘some’ of the listed strings. We do not yet know if<.HEALTHCARE> is one of them. If it is, and the Board accepts the GAC
advice, Applicant of course would abide by that decision. It is a policy decision,
however, that should be made by the ICANN Board and not by the IO or thisPanel. Current policy as expressed in the Guidebook does not allow for the
onerous restrictions for which the IO advocates, providing only for determinationof whether a string or application itself would violate international law.40
51. The Panel would observe that the positions taken by the GAC are advisory andconsultative only and do not become operational within the domain name system until
accepted by ICANN. It further notes that while the gTLD <.healthcare> is among thoseof concern, the GAC has not gone so far as to recommend that it not be accepted.
52. In the Panel’s view, questions of the regime to be applied in broad areas such as thehealth sector fall within the general policies of ICANN and are not to be determined byexpert panels acting in relation to individual, themselves not improper, strings. To theextent that the commitments undertaken by the Applicant do not sufficiently address the
GAC’s policy concerns, it is for the GAC and ICANN to determine what course of action
to take.

It would not be appropriate for this Panel to specify in further detail theappropriate regulation of the proposed domain.
53. The Applicant also relied on the burden of proof incumbent on the Independent Objector
in relation to an objection. For the reasons given, the Panel is of the opinion that the
Objection fails without need to decide on burden of proof grounds.

(d)Remedies available

54. Article 14(e) of the Procedure states that:
Upon the termination of the proceedings, after the Panel has rendered its Expert
Determination, the DRSP shall refund to the prevailing party, as determined by
the Panel, its advance payment(s) of Costs.
Article 21(d) provides that:40

Response to the Additional Written Statement, p. 5.

22

The remedies available to an Applicant or an Objector pursuant to any proceeding
before a Panel shall be limited to the success or dismissal of an Objection and to
the refund by the DRSP to the prevailing party, as determined by the Panel in its
Expert Determination, of its advance payment(s) of Costs pursuant to Article
14(e) of this Procedure and any relevant provisions of the applicable DRSP Rules.
The phrasing of this provision suggests that a panel’s role is limited to determining whichis the prevailing party, and that a panel does not have any discretion to determine thequantum of the refund to be paid. If this Panel had such discretion, it would have reduced
the refund to be paid to the Applicant to take account of the Applicant’s unjustified attackon the good faith of the Independent Objector.

(e)Decision

55. For these reasons, taking into account all the arguments of the parties, and notably thecommitments referred to in the Application,41 the Panel hereby renders the following
Expert Determination in accordance with Article 21(d) of the Procedure:(a) the Objection of the Independent Objector is dismissed;(b) SILVER GLEN LLC, the Applicant, prevails;(c) the Applicant’s advance payment of costs shall be refunded by the Centre.
26 November 2013____________________________
Prof. James Crawford
Chair of the Expert Panel

41

Application, answers 18(a), 18(b) and 29.

23

Prof. Maria Gavouneli
Co-Expert of the Expert Panel

Mr James Bridgeman
Co-Expert of the Expert Panel24