THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/495/ICANN/112

UNIVERSAL POSTAL UNION(SWITZERLAND)vs/AMAZON EU S.A.R.L.
LUXEMBOURG

This document is a copy 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.

EXP/ 495/ICANN/112 - EXPERT DETERMINATIONINTERNATIONAL CHAMBER OF COMMERCE
INTERNATIONAL CENTRE FOR EXPERTISE
EXP/495/ICANN/112

EXPERT DETERMINATION(Community Objection)

In the matter

UNIVERSAL POSTAL UNION(Switzerland)
vs/
AMAZON EU S.A.R.L.
(Luxembourg)

Issued byProfessor Catherine KESSEDJIAN
ExpertEXP/ 495/ICANN/112 - EXPERT DETERMINATIONTABLE OF CONTENTS
Acronyms and Definitions .......................................................................................................................................... 3
I. INTRODUCTION ................................................................................................................................................... 4
A. THE PARTIES .................................................................................................................................................. 4
B. THE EXPERT PANEL ........................................................................................................................................ 4
1. The New gTLDs ......................................................................................................................................... 5
2. The Agreement to the Dispute Resolution Mechanism............................................................................... 5
3. The Objection and the Response ................................................................................................................. 6
D. THE SCOPE OF THE PRESENT EXPERT DETERMINATION .................................................................................. 6
II. THE COURSE OF THE EXPERT DETERMINATION PROCEEDINGS ..................................................... 8
A. THE EXPERT MISSION, LANGUAGE AND TIMETABLE....................................................................................... 8
B. PARTIES’ SUBMISSIONS................................................................................................................................... 8III. THE DISPUTE ..................................................................................................................................................... 9
A. THE OBJECTOR’S MAIN ARGUMENTS .............................................................................................................. 9
1. UPU has standing as it is an established institution which represents a “clearly delineated community” .. 9
2. Community opposition to the application is substantial ............................................................................. 9
3. There is a strong association between the community invoked and the .mail string................................. 10
4. Amazon’s application does not creatre a likelihood of material detriment ............................................... 10
B. THE APPLICANT’S MAIN ARGUMENTS ........................................................................................................... 11
1. UPU does not have standing as it does not represent a clearly delineated community ............................. 11
2. Community opposition is not substantial .................................................................................................. 12
3. There is no strong association between the community invoked and the .mail string .............................. 14
4. Amazon’s application does not create a likelihood of material detriment ................................................ 14
IV. THE FINDINGS OF THE EXPERT PANEL .................................................................................................. 15
A. Does UPU have standing? ........................................................................................................................ 15
B. Is There a Substantial Opposition by the Community? ............................................................................ 18
C. Is There a Strong Association? ................................................................................................................. 23
D. Does the Application create a likelihood of material detriment? ............................................................. 24
V. FINAL CONCLUSION BY THE EXPERT PANEL ........................................................................................ 31
VI. EXPERT DETERMINATION COSTS ............................................................................................................ 32
VII. DECISION ......................................................................................................................................................... 32

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EXP/ 495/ICANN/112 - EXPERT DETERMINATIONACRONYMS AND DEFINITIONSGeneralAmazon:Amazon EU S.A.R.L. or the Applicant

Appendix III:

Appendix III to the Rules, Schedule of Expertise Costs for Proceedings under
the New gTLD Dispute Resolution Procedure

Centre:The ICC Centre for Expertise

Guidebook:

ICANN gTLD Applicant Guidebook, Module 3 (version of 4 June 2012)

ICANN 2007 Report:

ICANN Final Report on the Introduction of New Generic Top-Level
Domains, 8 August 2007, last updated 4 September 2009 (referred to in
section 3.2.1. of Module 3)

ICC Practice Note:

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

Module 3:

Module 3 of the ICANN gTLD Applicant Guidebook

Procedure:

Attachment to Module 3 of the gTLD Applicant Guidebook, New gTLD
Dispute Resolution Procedure

Rules:The Rules for Expertise of the ICC

UPU:

Universal Postal Union or the Objector

Pleadings and Other Procedural Elements

Annex (followed by number):Annexes to the Applicant’s Response

Applicant:AmazonClosed gTLD:A gTLD which is proposed to be operated for the sole benefit of the Applicant

DNS:

Domain Name System

DNSSEC:

Domain Name System Security Extensions

DPO:

Designated Postal Operator

Established Institution:

An Institution, as defined in section 3.2.2. of Module 3

Exhibit (followed by number):Annexes to the Objector’s Objection

GAC:

Governmental Advisory Committee to ICANNIO:

The Independent Objector appointed by ICANNObjection:

The Objection filed by UPU on 13 March 2013

Objector:

UPU

Response:

The response to the Objection filed by Amazon on 18 May 2013

Sponsored gTLD:A gTLD in the meaning defined by the ICANN 2007 Report

USPS

United States Postal Service

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I. INTRODUCTION
A. THE PARTIES
1. The Objector
UNIVERSAL POSTAL UNION
Mr. Ricardo Guilherme Filho
Weltpoststrasse 43000 Berne 15
Switzerland
email: ricardo.guilherme@upu.int
hereinafter referred to as “UPU” or “the Objector”
2. The Applicant
AMAZON EU S.A.R.L.
5 rue Plaetis
Luxembourg
L – 2338 Luxembourg
hereinafter referred to as “Amazon” or “the Applicant”
represented by
CROWELL & MORING
Mr. Flip Petillion
Rue Joseph Stevens 71000 Brussels
Belgium
email: fpetillion@crowell.com
3. The Objector and the Applicant are hereinafter collectively referred to as “the Parties”.

B. THE EXPERT PANEL
4. By letter of 25 June 2013, the Centre informed the Parties that the Chairman of theStanding Committee appointed the Expert Panel on 14 June 2013, pursuant to Article 3(3)of Appendix I to the Rules.
5. The Expert Panel is composed of one Expert:
Prof. Catherine Kessedjian
19 villa SeuratBoîte/Porte B
75014 Paris
France4

EXP/ 495/ICANN/112 - EXPERT DETERMINATION

C. THE BACKGROUND OF THE DISPUTE
1. The New gTLDs
6. After a long consideration with several rounds of public comments and consultation,
ICANN has decided to open the way for a large number of new generic top-level domainnames (“gTLDs”), while they were before very limited in number (22 as of 13 June 2012).
The goal set by ICANN is to “open up the top-level of the Internet namespace to foster
diversity, encourage competition and enhance the utility of the DNS”1.
7. On 13 June 2012, ICANN publicly released a listing of approximately 1900 new gTLDs
Applications. These Applications were made by persons and entities that want to manage
the new gTLDs in a manner described in the applications, only part of which is known by
the public. Public literature indicates that Amazon filed Applications for 76 gTLDs.
8. After all Applications were published, there was a period for objections from persons andentities that opposed the attribution of some of the new gTLDs.
9. ICANN also appointed an Independent Objector (IO) in the person of Professor Alain
Pellet. The present case is not stemming out of an IO’s objection.
10. The present dispute arose out of UPU’s Objection to the .mail new gTLD for which
Amazon filed an Application posted on 13 June 2012, under reference N° 1-1316-17384.
11. Before going into the details of the Objection and the Response, it is worth mentioning that
this dispute is a “Community Objection”, as defined by Article 2(e)(iv) of the Procedureand further explained in the Applicant Guidebook. We will set out below the tests whichmust be met for the Objection to prevail as set out in Module 3 of the Applicant
Guidebook2.
2. The Agreement to the Dispute Resolution Mechanism
12. By filing an Application, an Objection or a Response under the Dispute Resolution
mechanism defined by ICANN, both the Objector and the Applicant agree on the set ofprocedural rules listed in the Centre’s letter of 13 August 2013, all of them being available
on the Centre’s website. For the sake of clarity, these rules are:
The Rules for Expertise of the ICC (“Rules”)
1
2

Preamble to Applicant Guidebook, p.2.
See, notably, p.6 below.

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Appendix III to the ICC Expertise Rules, Schedule of expertise costs forproceedings under the new gTLD dispute resolution procedure (Appendix
III”)
ICC Practice Note on the Administration of Cases (“ICC Practice Note”)
Attachment to Module 3 of the gTLD Applicant Guidebook, New gTLD
Dispute Resolution Procedure (“Procedure”)
Module 3 of the gTLD Applicant Guidebook (“Guidebook”).
13. Particularly, the Parties agree that the Expert Determination is binding upon them.
14. It is unclear, however, whether the Expert Determination is binding upon ICANN. This
point need not be decided because it falls outside the scope of this Expert Determination.

3. The Objection and the Response
15. UPU filed the Objection to the .mail gTLD Application by Amazon on 13 March 2013.
16. The ICC Centre acknowledged receipt of the Objection on 18 March 2013 which was thenregistered for processing on 5 April 2013.
17. During the month of April 2013, there was discussion between the Parties and the Centre as
to the possible consolidation of the present case with other cases filed for the same .mailgTLD. Consolidation was requested by UPU but opposed by Amazon.
18. On 2 May 2013, the ICC Centre for Expertise wrote to the Parties informing them that it
decided not to proceed with the consolidation of the present case with other cases relating
to the .mail gTLD.
19. This is why the present case proceeds independently from the other cases filed for the .mailgTLD.

D. THE SCOPE OF THE PRESENT EXPERT DETERMINATION
20. The present Expert Determination is limited to the examination of the standards defined by
ICANN for a Community Objection in Module 3.
21. Module 3 deals with Community Objection in three different parts.

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22. First, section 3.2.1. of Module 3 describes the grounds for objection, including theCommunity Objection, and refers the reader to the ICANN report on the policy
development process for the new gTLDs, report dated 7 August 2007, available on line on
ICANN’s website, for “the rationales for these objection grounds”3. This report is referredbelow as the ICANN 2007 Report4.
23. Second, section 3.2.2.4. describes who is eligible to file a Community Objection anddefines further which factors could be taken into consideration to decide whether the
Objector is an Established Institution and whether it has an ongoing relationship with aclearly delineated community.
24. Finally, section 3.5.4. defines four (4) tests which the Expert Panel must take into
consideration in order to decide whether the objection prevails. These four tests are, as
follows:
The objector must be an established institution with an ongoing relationshipwith a clearly delineated community; andCommunity opposition to the application is substantial; andThere is a strong association between the community invoked and the appliedfor gTLD string; andThe application creates a likelihood of material detriment to the rights orlegitimate interests of a significant portion of the community to which the string
may be explicitly or implicitly targeted.
25. The four tests mentioned in the preceding paragraph are cumulative, i.e. if any one of themis not met by the Objector, the Objection must be rejected.
26. It must also be stressed that the burden of proof lies with the Objector (Article 20(c) of theProcedure).
27. The overall philosophy of the Community Objections transpires from the Public Comment
Summary prepared by ICANN and dated 21 February 2011 (Annex 1). Notably, ICANN
emphasizes that “the ultimate goal of the community-objection process is prevent themisappropriation of a community label by delegation of a TLD and to ensure that an

3

This is the report referred to in Article 2(e) of the Procedure.
It is to be noted that the online version of the ICANN 2007 Report mentions it was last updated on 4 September
2009.
4

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objector cannot keep an applicant with a legitimate interest in the TLD from succeeding.”(Annex 1, p.94 and again p.104).

II. THE COURSE OF THE EXPERT DETERMINATION PROCEEDINGS
A. THE EXPERT MISSION, LANGUAGE AND TIMETABLE
28. According to the ICC Centre’s letter of 13 August 2013, the requirement for a written“expert mission” is waived in accordance with point 6 of the ICC Practice Note.
29. According to the same letter, the Expert Panel could have decided to establish such a
document. However, after due consideration, the Expert Panel decided not to do so.
30. Pursuant to Article 5(a) of the Procedure, the language of the submissions and proceedings
is English.
31. Pursuant to Article 6(a) of the Procedure, the correspondence between the Parties, theExpert and the Centre was entirely submitted in electronic form.
32. Pursuant to Article 4(d) of the Procedure, the place of the proceedings is Paris, France.
33. Article 21(a) of the Procedure provides that the Centre and the Expert shall makereasonable efforts to ensure that the Expert renders his decision within 45 days of theconstitution of the Expert Panel. The Centre considers that the Panel is constituted when
the Expert is appointed, the parties have paid their respective advances on costs in full andthe file is transmitted to the Expert. In this case, the Panel was constituted on 13 August
2013 (i.e. the date on which the file was transmitted to the Expert). Accordingly, the Centre
and the Expert were to make reasonable efforts to ensure that her determination was
rendered no later than 27 September 2013 (as calculated in accordance with Articles 6(e)and 6(f) of the Procedure).
34. Pursuant to Article 21(b) of the Procedure, the Expert submitted her draft Determination to
the Centre on 10 September 2013, for scrutiny as to form before it was signed.

B. PARTIES’ SUBMISSIONS
35. The Expert Panel decided the present case according to the following documents filed by
the parties:

8EXP/ 495/ICANN/112 - EXPERT DETERMINATIONThe Objection filed by UPU on 13 March 2013 with 20 exhibits. On 14 March
2013, UPU replaced the content of Exhibit 17, requesting that the “new exhibit 17” betaken into consideration instead of the one filed with the Objection.
The Response filed by Amazon on 18 May 2013 with 31 annexes.
36. According to the Procedure, both the Objection and the Response and all of the exhibits
and annexes were transferred to the Expert Panel in electronic form.
37. Pursuant to Article 19(a) of the Procedure, the Expert Panel decided not to hold a hearing.
38. The Expert Panel decided not to request additional evidence from the Parties.

III. THE DISPUTE
A. THE OBJECTOR’S MAIN ARGUMENTS
1. UPU has standing as it is an established institution which represents a “clearlydelineated community”
39. UPU argues that it is an Established Institution, in the meaning of section 3.2.2.4. of the
Guidebook, since it is in existence as an intergovernmental organization for over 118 years
and is, since 1948, a specialized agency of the United Nations. It is composed of 192
member countries which have designated altogether 199 DPOs (Exhibit 1).
40. UPU argues that it serves the Postal Community which is a clearly delineated community
as required by the Guidebook. UPU acts via a number of bodies and the Universal Postal
Congress, held every four years (exhibits 3 and 5). It also claims that it serves the generalpublic because “the Postal Community functions to protect the interests of the public instrong, secure and trustworthy mail services and to facilitate international cooperation in
the mailing field” (Objection p.8).
2. Community opposition to the application is substantial
41. UPU’s mandate is, among others, “to stimulate the lasting development of efficient andaccessible universal postal services of quality, in order to facilitate communication between
the inhabitants of the world” (Objection p.7). UPU’s mandate also directs the organization
to adopt “fair common standards and the use of technology, the cooperation and interaction
among stakeholders, the promotion of effective technical cooperation and the satisfactionof customers’ changing needs” (Objection p.7).
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42. Because of that mandate, several Posts have asked the UPU to file the Objection “with theapproval of the Director General”. In consequence, UPU argues that “the filing of thisObjection by the UPU on behalf of the Postal Community alone demonstrates substantial
opposition to the Application from the Postal Community” (Objection p.10).
43. In order to prove that there is substantial opposition from the Postal Community, UPU
argues that five Posts filed over eighty Public Comments against the Application (Exhibit7), having invested “significant time, efforts and funds” for that purpose. Among the Posts
opposed to the Application is USPS which handles more than 40% of the world’s mailvolume (Objection p.10).
44. Therefore, according to the UPU, there is a substantial opposition by the Community
invoked.
3. There is a strong association between the community invoked and the .mail string
45. UPU argues that the operation and interests of the Postal Community are implicitly targetedby the proposed gTLD .mail because it threatens to interrupt the smooth and secureprovision of mail services (Objection p.8).
46. UPU argues further that the Applicant “does not take into account the accepted meaning of
the term ‘mail’ and the Postal community” (Objection p.11). According to UPU, theApplicant intends to operate the gTLD .mail as a closed registry, which, among others, will
have the consequence that “the Postal Community will be barred from using the .mail TLD
to communicate with the public regarding ‘mail’” (Objection p.12).
47. UPU also claims that the public associates the term “mail” with the goods and services
provided by members of the Postal Community (Objection p.12 and 18, Exhibit 13). In
most countries, “mail” and “post” are associated, says UPU, and they refer to a “regulatedindustry”. However, the manner in which the Applicant proposes to run the .mail TLD
means that it “would be skipping over the entities that actually provide mail services”(Objection p.13).
48. Consequently, there is a strong association between the community invoked and the .mailstring.

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4. Amazon’s application does create a likelihood of material detriment
49. UPU argues that the Applicant’s proposed operation of the .mail TLD “would substantiallydamage the Postal Community’s reputation by failing to meet the public expectations
regarding the reliability, privacy and security of “mail” which has been established throughgreat effort by the Postal Community” and through regulations which make mail exchanges“secret and inviolable” (Objection, p.14). This is why Posts are often considered as “trusted
institutions” thanks to security strategies put together by the UPU through its Postal
Security Group (Exhibit 5) which have raised the level of expectation of the public in theprivacy and security of “mail” (Objection, p.15 and Exhibits 15 and 16).
50. The risk of confusion of the public is important, says UPU, as the .mail TLD “and theassociated websites” would be given the same level of trust by the public as they give to themail when, in fact, those websites would not warrant the same security and privacy(Objection, p.16). Having that in mind, UPU predicts that “Posts will [...] have to commit
time and resources to complaints directed at them by mistake as a result of unregulated
activities conducted at the .mail TLD” (Objection, p.16).
51. UPU insists that “the Applicant’s proposed use of the .mail TLD ignores the public interestin protection of smooth, secure delivery of the world’s mail by the Postal Community”(Objection, p. 16-17) which was ICANN’s mandate to UPU with the .post sponsored TLD.
Moreover, the establishment of the .mail TLD will misdirect “consumers from the websitesof the Posts or from .post websites to websites on the .mail TLD, thereby disrupting theactivities of the Postal Community and harming the public” (Objection p.17).
52. Finally, UPU argues that the Postal Community depends on the DNS for its core activities
and that the use of .mail TLD by the Applicant would “unfairly encroach” on the Postal
Community’s goods and services (Objection p.18-19 and Exhibits 19 & 20).

B. THE APPLICANT’S MAIN ARGUMENTS
1. UPU does not have standing as it does not represent a clearly delineated community
53. Amazon first argues that the community invoked by the Objector is composed of only one
entity, namely its own organization which does not have the monopoly of “providing
efficient and accessible (universal) postal services of quality across the world” (Response,p.5). “Apart from the DPOs, [...] there are many companies providing postal services and11

EXP/ 495/ICANN/112 - EXPERT DETERMINATION
DPOs are free to rely on non-DPOs in the international exchange of (letter-)post items(Response, p.5). Companies such as DHL and the like are not part of the ‘community’described by the Objector, even though they provide postal services globally (Annexes 47).
54. In addition, says Amazon, there is a clear tendency to liberalize the postal sector (Annex 8),
to enhance competition in the postal industry and the Objector does not represent the newincumbents who do not belong to the Postal Community as described by the Objector.
Indeed, the postal sector is comprised of all private and public operators involved in thecollection, sorting, transmission and delivery of postal items (Response, p.6). Therefore,
the Postal Community invoked by the Objector only comprises a small fraction of the
postal sector, and is an “artificial fraction” of same “which can shift if UPU MemberCountries so decide” (Response, p.6).
55. In any case, UPU is not an Established Institution in the meaning of section 3.2.2.4. of the
Guidebook
56. Consequently, the Objector lacks standing as it is not associated with a ‘clearly delineatedcommunity’.
2. Community opposition is not substantial
57. The Objector misrepresents the facts, particularly because “the Objector’s argument that‘several Posts have asked the UPU to file [the] Objection [...] is not supported by any
evidence”, neither is the allegation that China Post, Macao Post and South Africa Post haveseparately expressed their support against the Application (Response, p.7 and Annex 13).
58. Amazon argues further that the allegation by the Objector that Brazil Post and Poste Maroc
together with other Posts have expressed their opposition through their Member-Country’s
GAC representative is no more than previous allegations supported by evidence. “Only one
GAC Early Warning has been issued, namely by the Australian representative (Annex 14)
who issued 129 Early Warnings in total involving various gTLDs (Annex 15)” (Response,p.7). However, that Early Warning was more of a general nature, the GAC representative
being concerned that the Applicant would be seeking “exclusive access to a common
generic string (.MAIL) that relates to a broad market sector” (Response, p.8).

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59. In addition, Amazon disagrees with the Objector’s statement that “the mere filing of the
Objection” would be demonstrating substantial opposition from the community invoked(Response, p.7).
60. The number of public comments against the Application claimed by the Objector is a
“gross exaggeration” since no Public Comments were issued by the Brazilian Post. Only
three postal operators (USPS, Poczta Polska and Poste Italiane) have issued Public
Comments against the Application (Annexes 9-12) which are in reality identical comments,
therefore duplicative and redundant. Out of these comments, only one by Poczta Polska andone by Poste Italiane, did refer to the Community Objection Ground. The USPS’ comments
were not based on the community objection ground. None of these two Posts are
representative since Poczta Polska’s market share is decreasing (Annex 17) and Poland’s
postal market is among the smallest in the EU (Annex 18). Poste Italiane competes with amultitude of other market players (Annex 8) and there is a lack of recent statistical data tounderstand Italy’s position in the European postal market (Annex 18) (Response, p.9).
61. Turning to the USPS’ opposition, Amazon argues that USPS is not representative for either
the US postal market, or for the global postal sector, since it is unclear on which basis thestatistics provided by USPS have been computed. USPS does benefit from a monopoly for
letter-post in the US, but USPS may use external operators for pre-delivery operations(Response, p.9). In addition, USPS does face competition on the US market (Annex 20)
and its market share varies considerably depending on the kind of services taken into
consideration (Response, p.10 and Annex 21).
62. To confirm that lack of substantial opposition, Amazon files Annex 16 which is the GAC’s
Communiqué (Beijing, 11 April 2013) including Advice to the ICANN Board on New
gTLDs with an Annex I entitled “Safeguards on New gTLDs”. Amazon reads thisdocument to mean that the GAC “did not advise that the Application should not proceed”;“did not list the Application as a string that is linked to regulated or professional sectors”;“solely mentioned that exclusive registry access to the .MAIL string should5 serve a public
interest goal” (Response, p.8). However, says Amazon, “This advice is a non-binding
request to the ICANN board. It is in no way a request that the Application should notproceed; at most, the GAC asked for taking up some additional provisions in the registry
policies” (Response, p.8).

5

Emphasis in the original.

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3. There is no strong association between the community invoked and the .mail string
63. Amazon’s Response to the Objection on this point is very short (less than a page). It argues
that in an electronic context, and in various parts of the world, mail refers to electronic mail(Annexes 22 to 25). Therefore, the Internet users will associate ‘mail’ to electronic mailrather than to physical mail (Response, p.11).
64. In addition, Amazon contests that the Postal services are regulated in the way presented by
the Objector (Response, p.12).
4. Amazon’s application does not create a likelihood of material detriment
65. Amazon mainly presents three arguments in response to the Objector’s position on thisquestion. 1) The .MAIL string is not targeted to the ‘Postal Community’ as described by
the Objector, the postal sector being much larger and the meaning of ‘mail’ being muchbroader and not targeted to the postal sector; 2) The Application is not damaging the postal
sector, as it is not targeting the postal sector; 3) even if the Application was targeting thepostal sector, quod non, it would not materially detriment the rights or legitimate interestsof the community invoked (Response, p.12).
66. Amazon emphasises that it intends to “provision a relatively small number of domains in
the .MAIL registry to support the business goals of Amazon” (Response, p.12 and Annex
27). In addition, “Amazon’s business goals are not targeted at bringing harm to the postal
sector” (Response, p.13). In fact, Amazon argues, Amazon’s e-commerce businessgenerates additional shipments for postal operators who benefit from it (Response, p.13).
67. Contrary to the Objector’s argument, ‘mail’ and ‘post’ are not interchangeable and no
confusion can derive from the .mail string, since both “the names and the purposes of thesegTLDs are sufficiently distinct for the Internet user to understand the differences between.POST and .MAIL” (Response, p.13 and Annexes 28 & 29). Further, since the .MAIL
gTLD “is to support the Applicant’s e-commerce business, there is no risk of interferencewith the core activities of the community invoked by the Objector” (Response, p.13).
68. Amazon argues also that the Objector’s argument concerning trust is misplaced. Indeed, thesame study invoked by UPU (the Ponemon Institute study, Exhibit 16 and Annex 30) ranks
the Applicant “third, with a seven year average rank of 4.4 whereas USPS is ranked fourth,with a seven year average rank of 6.0” (Response, p.14). Amazon notes in addition that “itwill implement appropriate privacy policies respecting requirements of local jurisdictions

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and that it is a participant in the Safe Harbor program developed by the US Department ofCommerce and the European Union”, and that it will use DNSSEC as well, which is
required for all new gTLDs (Response, p.14).
69. Finally, Amazon is of the opinion that the community’s core activity invoked by UPU,
does not depend on the DNS and that there is no concrete economic damage.
70. Consequently the Objector did not meet the final test for the Community Objection as there
is not likelihood of material harm.

IV. THE FINDINGS OF THE EXPERT PANEL
71. The Expert Panel will examine consecutively the four tests outlined above6.

A. Does UPU have standing?
72. In order to decide on this question, the Expert Panel must answer two separate questions: 1)
Does the Objector invoke a “clearly delineated community? 2) Is the Objector an
Established Institution?
1) Does the Objector invoke a “clearly delineated community”?
73.

In order to decide on the first test, i.e. whether the community invoked by the Objector is a“clearly delineated community”, the Expert had first to find out what is a “community” inthe meaning used by ICANN.

74.

Module 3 proposes five (5) factors which, inter alia, an Expert Panel could balance todecide on the first test, but none of these factors readily defines what a community is.
Hence, the Expert had to resort to other sources.

75.

After due consideration of the Parties’ submissions and of the general public debate which
this notion has triggered, the Expert decided that the best definition of what is acommunity, for the purpose of a Community Objection, is the one found in the ICANN2007 Report. This definition is as follows: “Community should be interpreted broadly andwill include, for example, an economic sector, a cultural community, or a linguistic
community. It may be a closely related community which believes it is impacted.” (p.5 of
the online document and Recommendation 20).

6

See paragraph 24.

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It is true that the NCUC Minority Statement criticizes the definition and the guidelines bysaying that allowing a broad definition of the concept of community allows “for the
maximum number of objections” (Annex C to the ICANN 2007 Report, p. 21 of the on-line
document). Further it explains that “there is no requirement that the objection be reasonable
or the belief about impact to be reasonable. There is no requirement that the harm be actual
or verifiable. The Standard for ‘community’ is entirely subjective and based on the
personal beliefs of the objector” (same reference).

77.

The Expert Panel is of the opinion that, notwithstanding the criticisms expressed towards
the definition proposed by ICANN, such definition is the best possible to match thephilosophy of community objections as expressed above7.

78.

UPU says that the community it invokes is the “Postal Community” (Objection p.6 andseveral times thereafter). However, in the same paragraph, it also says that “the public is
directly affected by the proposed operation of a .mail TLD that does not originate from atrusted governmental source and does not actually provide any regulated mail services”.
Therefore, there is some doubt about what is the exact delineation of the community
invoked by UPU. Is it the Postal Community? Is it the public at large?
a) The Postal Community

79.

It is now necessary to decide whether the “Postal Community” invoked by the Objector isof such a nature as required for a “clearly delineated community”. The Objector explainsthat the Postal Community invoked is composed of its Member States (i.e. 192 States as of
1 Dec. 2011) and of the 199 Posts (Objection p.16 and Exhibit 1). In other words, thePostal Community invoked by UPU has the same composition as the UPU itself.

80.

Amazon argues that “in reality, the ‘community’ invoked by the Objector is composed of
one entity, namely its own organization (Response p.5). Amazon relies on the fact thatcompetition in the field of postal services is growing in the world and that privatization has
taken place already for many years. Indeed, Amazon argues, private companies such as
DHL, UPS, TNT and FedEx, propose services which, once upon a time, were themonopoly of governmental entities. This is no more the case. Amazon argues further thatnone of these private companies are represented by UPU.

81.

The Expert Panel can only note with approval that, indeed, services akin to postal services
are nowadays performed by private companies which compete with the traditional public

7

See paragraph 27.

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postal services. However, the Expert finds that Amazon’s argument fails short of proving
the point it is trying to make. Indeed, if one agrees that there are now both private andpublic companies which offer postal services, UPU does not pretend to represent theentirety of these companies. In fact, when one considers the market of postal services in
2013, it is clear that it is divided into two communities: the first one is the traditional postal
community composed of public entities which, for the sake of this Determination, will becalled the “public sector postal community”; the second one may be composed of theprivate companies mentioned by Amazon plus any other which perform similar services,which could be called the “private sector postal community”8. UPU pretends only torepresent what the Expert just called “the public sector postal community”.
82.

Amazon argues further that the public sector invoked by the Objector is only “a small
fraction” of the postal sector (Response p.6). However, nowhere in Module 3 is the Expert
directed to decide whether the Objector represents a majority of the community or a large
majority of the community9. The only test is whether the community is “clearlydelineated”. Hence, Amazon’s argument does not change the determination made by theExpert above that there are two separate, clearly delineated, communities in the postal
industry. Therefore it is not necessary to decide whether the public sector postal
community is smaller than the private sector postal community, as Amazon seems to argue.
In any case, even if the Expert were to take that route, quod non, Amazon does not propose
a clear set of factors to decide which community is larger. Hence, the Expert cannot andmay not engage in the calculation of whether the private sector operators’ services arelarger than those from the public sector operators. In any case, Amazon does not propose
any criterion to proceed with such a calculation (number of employees? number ofvehicles? number of offices? number of clients? turnover? all of them? others?) which, in
any case, would be sterile in view of the test requested by the standards provided byModule 3.

83.

Amazon further argues that the Objector invokes “an artificial fraction” of the postal sector(Response p.6). The Expert finds no artificiality in the fact that UPU has been set torepresent its Member countries and the designated Postal Offices that these countries havenominated. In fact Amazon confuses two different concepts. 1) The postal sector or postal
industry, on the one hand, which is composed of both public and private operators since the8

Whether these private companies do form a community in the ICANN meaning of the concept remains to be
demonstrated. This demonstration falls outside the scope of this Determination and is not necessary for it.
9This argument is probably more relevant for the analysis of the second test below. See paragraphs 90 & ff.

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liberalization of postal services; 2) the Postal Community invoked by UPU, on the other
hand, which is composed of the public operators only. The Postal Community is, therefore,a clearly delineated community for the purposes of a Community Objection.
b) The public at large
84.

The difficulty for this first test is one that Amazon has not really focused on but is clearly
apparent in UPU’s arguments. Indeed, while UPU does claim that it represents the Postal
Community composed of public sector operators, it then proceeds to make references, allalong its Objection to the “public” or “the global public” (notably Objection p.9).

85.

Considering the definition the Expert Panel has retained for the concept of “community” itdoes not seem that the public at large can be considered as a community so that to invoke a“clearly delineated” one, which is the test to be decided. This is not to say, however, thatthe public at large is completely outside the scope of the decision. Indeed, as will be
explained later in this Determination10, the public must be taken into consideration for the
analysis of the fourth test, but the public at large, as claimed by UPU, is not the proper
factor to be taken into consideration for the first test.

86.

Having said that, however, this caveat does not change the Expert Panel’s conclusion that
UPU invokes a clearly delineated community.

87.

For the reasons explained above, the Expert Panel is of the opinion that the Objector has
met the burden of proving that it represents a clearly delineated community.
2) Is UPU an “established institution”?

88.

There is no doubt that UPU is an Established Institution (Objection p.5, 8 and 9) and fulfils
the criteria mentioned in section 3.2.2. of Module 3. This is not contested by Amazon andneeds no further examination.
3) Conclusion on the first test

89.

The Objector has met the requirements of the first test.

B. Is There a Substantial Opposition by the Community?
90.

For the second test to succeed, the Objector must show that the “Community opposition to
the application is substantial”. Module 3 (at section 3.5.4., p. 3-23) suggests that the Expert

10

paragraphs 117 & ff.

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Panel could take into consideration, inter alia, the number of expressions of opposition; therepresentative nature of entities expressing opposition; the level of recognized stature or
weight among sources of opposition; the distribution and diversity among sources of
expressions of opposition; the historical defense of the community in other contexts and thecosts incurred by the objector in expressing opposition.
91.

In addition ICANN has warned Expert Panels that “the public comment forum should not
be used as a mathematical polling mechanism [...], the quantity of comments is not in itself
a deciding factor.” (Annex 1, p.37).

92.

This is why the Expert Panel decided to look at three elements: 1) the opposition by the
public at large; 2) the opposition by UPU’s members, i.e. the Postal Community invokedby the Objector; 3) the opposition by UPU itself.
1) Expression of opposition by the public at large

93.

Based on its 2011 Annual Report (Exhibit 6) UPU argues that the Postal Community it
represents delivers mail to “82% of the world’s population or more than 5 billion people”(Objection p.9 and Exhibit 5). In addition, UPU emphasizes that the Postal Community
concerns 5 million postal employees and 663 000 postal offices around the world (Exhibit
5). These figures are not contested by Amazon in any material way. However, they are notinteresting as such for the decision to be taken on the second test. Indeed, it would havebeen more cogent if UPU had successfully triggered a large public campaign against the
attribution of the .mail TLD to one or more private companies. Nowadays, with theInternet, such campaigns are easy to launch. Nothing similar has been evidenced by UPU.

94.

It is true that UPU is an intergovernmental organization and, as such, thought it more
appropriate to rely on its members.
2) Expression of opposition by UPU members

95.

This is why UPU files a number of oppositions expressed by some postal administrations
or offices during the public comment period opened by ICANN (Exhibit 7). Exhibit 7
comprises copies of all oppositions filed, not only against Amazon’s Application, but also
against applications by other companies. For the present case, the Expert Panel took into
consideration only the opposition expressed against Amazon’s Application, i.e. pp. 27 to 39
of Exhibit 7 and Annexes 9 to 12).

96.

The Expert Panel can only notice, together with Amazon, that the content of Exhibit 7 does
not match the text of the Objection itself. UPU argues, for example, that “Brazil Post” and19EXP/ 495/ICANN/112 - EXPERT DETERMINATION
Poste Maroc have expressed opposition to the Application (Objection p.10). However, theExpert Panel could find no evidence of such an opposition in UPU’s file for the present
case. Brazil Post has filed one comment but for a different application. In addition, contrary
to other postal services (for example the USPS or Poste Italiane), it has not considered
important enough to replicate its comment for the other applications, even though
ICANN’s guidelines make it clear that comments should be made for each application (seeAnnex 12). Poste Maroc has filed a very brief comment saying that it agrees with the
USPS, but it did so against another application which has now been withdrawn. Poste
Maroc, like Brazil Post, has not considered it to be important enough to duplicate its
comment against Amazon’s application.
97.

UPU also argues (Objection p.10) that “China Post and Macao Post separately expressed
their support for the Public Comments filed against the Application. South Africa Post has
equally stated its opposition to the Application”. Notwithstanding this allegation, theExpert Panel notes that UPU’s file does not show any evidence of such an expression andAmazon having researched the Public Comments made in conjunction with the .mail TLD
could find no comments coming from any of the three Posts mentioned by UPU (Annex
13).

98.

UPU further argues that “a number of Posts have expressed their opposition ... throughtheir Member Country’s Governmental Advisory Committee (GAC) representatives”
Objection p.10). Again, as Amazon points out, UPU’s file does not contain any evidence
supporting such an allegation. Amazon’s research on GAC’s documentation reveals nosuch opposition (Annexes 14 and 15).

99.

Amazon files a GAC Communiqué released in Beijing on 11 April 2013 (Annex 16) which
mentions no opposition from specific members of GAC and no decision to oppose the .mailstring, contrary to a number of other strings such as .shenzhen, .persiangulf, .date, .spa
etc..., (see p.3 of Annex 16).

100. Further, out of the 80 or so public comments claimed by UPU to have been filed withICANN during the public comment period, a large part of them have been filed by the same
Posts, in similar or identical terms (see, for example, the comments by Poste Italiane andUSPS) for different applications. Against Amazon’s application UPU filed 3 comments by
Poste Italiane written in identical terms; 1 comment by Poczta Polska S.A. and 9 comments
by USPS.

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101. It is true that, as recalled in paragraph 91 above, an analysis of public comments may not
be made only on a mathematical basis. However, the Expert Panel is compelled to note thatout of the 199 Posts claimed to compose the Postal Community by the Objector, only avery small number have felt the need to express oppositions. Having said that, UPU’s next
argument is that the opposition by USPS is a very heavy opposition because of the weight
represented by that postal service within the Postal Community.
102. Indeed, UPU relies heavily on the one opposition by the USPS and seems to claim that, byitself, it does represent a substantial opposition. UPU exposes, without being contradictedby Amazon, that the USPS handles more than 40% of the world’s mail volume (Exhibit
8)11. These figures are certainly impressive but fall short of demonstrating that a substantial
portion of the Postal Community has expressed opposition to Amazon’s application for the.mail TLD. In fact, even if USPS does represent a large portion of the world’s mail volume,
this is not sufficient to prove a “substantial” opposition from the Postal Community. The
level of evidence required by ICANN, considering the philosophy restated above 12, ishigher and the Expert Panel needs to find that other sources of opposition exist.
3) Expression of opposition by UPU itself
103. UPU further argues that “in order to file this Objection, several Posts have asked the UPU
to file this Objection with the approval of the UPU Director General (Objection p.10). UPU
offers no evidence of this fact in its file. On the contrary, UPU argues simply that “thefiling of this Objection by the UPU on behalf of the Postal Community alone demonstrates
substantial opposition to the Application from the Postal Community” (same reference).
104. The Expert Panel doubts this assertion. Indeed, UPU’s General Regulations (Exhibit 3) do
propose a set of clear rules concerning the bodies of the organization. Apart from theCongress (what other organizations would call their general assembly) which meets every
four years, the organization is run by a Council of Administration (art. 17) whose functions
include: “to consider and approve, within the framework of its competence, any action
considered necessary to safeguard and enhance the quality of and to modernize theinternational postal service” (art. 102, section 6.2.). The Council is composed of 41
members (art. 102). It would have been possible, for the UPU Director General, to call theattention of the Council to the new gTLDs process and the necessity to act against the .mail
TLD. There was plenty of advance warning posted by some GAC’s members. There were
11
12

Information confirmed at p.44 of Annex 20.
See paragraph 27.

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plenty of consultation periods all along the process. However, UPU does not evidence thatsuch an action was ever taken.
105. The First Additional Protocol (24th Congress 2008 Geneva, also in Exhibit 3) empowers the
UPU Chairman to carry out the Council of Administration’s duties, in between sessions, incase of urgency. However, UPU does not show that the filing of the Objection has beenauthorized in this manner.
106. In addition, it is doubtful that the filing of the Objection would fall within the competenceof the International Bureau or of its Director General. The list of duties of the Director
General, provided by Art. 112 of UPU’s General Regulations, shows that the great majorityof them are administrative in nature. The Director General does not seem to have the power
to act on its own initiative. Perhaps, with a broad interpretation, it could be said that filingthe Objection could have fallen within the Director General’s duty under section 2.6. of
Article 112 which provides that the Director General is entitled: “to take action to achieve
the objectives set by the bodies of the Union, within the framework of the establishedpolicy and the funds available”. However, a stricter interpretation would lead to saying thatthe Director General may not act sua sponte. This stricter interpretation is in fact in linewith the text of the Objection itself, where UPU felt compelled, as stated above, to argue
that “several of its members have asked it to file this Objection”. If UPU Director General
had the power to act sua sponte, UPU would not have said that some of its members had
asked it to file the Objection. In any case, as said before, the allegation according to which
UPU’s members have asked the Director General to file the Objection is not accompanied
by any evidence.
107. For that purpose, the power of attorney filed by UPU is of no use since it only shows that
the Objection was filed “with the approval of the UPU Director General”. It does notprovide the source of the power of the Director General to approve such filing.
4) Conclusion on the second test
108. Considering the small number of Posts which have filed public comments (even if one
includes Poste Maroc and Brazil Post), and considering that it is doubtful that UPU’s
Director General has the power to act sua sponte, without at least a clear mandate of the
Chair of the Council of Administration, UPU has not met its burden of proof with respect
to the second test.

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C. Is There a Strong Association?
109. For the third test, the Objector must prove a strong association between the community
invoked and the applied-for gTLD string. This test is further characterized as “targeting” insection 3.5.4. of Module 3. The factors which the Expert Panel, inter alia, could take into
consideration are the statements contained in the application, other public statements by theapplicant and the associations by the public.
110. UPU argues that the word “mail” corresponds to an “inherently governmental function”(Objection p.12) and that if the Applicant was granted its Application, it “would beskipping over the entities that actually provide mail services” (Objection p.13). UPU argues
further that the public associates ‘mail’ with the Postal Community and that “in mostcountries, ‘mail’ sometimes referred to as ‘post’, is a regulated industry that refers to thedelivery of hardcopy correspondence” (Objection p.12). Finally UPU argues that this is amatter of trust by the public.
111. Amazon argues, on the contrary, first that “Internet users will associate ‘mail’ to electronic
mail rather than to physical mail (Response p.11 and Annexes 22 & 23). Second, “the word
‘mail’ has become a dictionary word in French, German and Dutch13, referring to ‘email’(Annex 24). Third, in English, the word ‘mail’ is used as ‘email’ (Annex 25)14. Finally,
Amazon argues that the postal services are not regulated in the way presented by the
Objector. “The market for postal services has been liberalized in many countries, whereby
only a small fraction of services is guaranteed through government intervention. States tend
to stimulate new market entrants rather than to preserve governmental or quasigovernmental monopolies” (Response p.12).
112. It is not entirely clear to the Expert Panel whether the arguments presented by both the
Objector and the Applicant about the confusion between “mail” and “post” are really
relevant to address the third test examined here. Indeed, the Expert Panel understands thetest as requiring that the community invoked is directly targeted by the new generic TLD
proposed. Hence, the Panel has to decide whether the Postal Community is indeed targetedby the application for the .mail gTLD.

13

In Annex 24, however, the word « mail » is first explained as « post » and only as “email” in the second rank
meaning. In the German dictionary, e-mail and e-post are equated, hence giving more weight to UPU’s arguments.
14
Annex 25 shows that « mail » in the meaning as e-mail comes only as the third meaning, the first meaning
being : « material sent or carried in the postal system » (see pp. 3 and 7 of Annex 25).

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113. Independently to what will be decided for the fourth test below about the potential publicconfusion between the classic, physical mail and the future Internet .mail services, if
Amazon’s Application is granted, there is little doubt that the .mail TLD future services aretargeting the Postal Community since mail services is the bulk of the services that the
Postal Community provides. This is particularly true for the USPS which is a pure player(Annex 20, p.42 & ff.), unlike the French La Poste which offers other services such as
financial services.
114. Amazon’s file itself (Annex 16) emphasizes the need for public interests goals to be taken
into consideration. Indeed, the GAC does advise ICANN Board that: “For strings
representing generic terms, exclusive registry access should serve a public interest goal”(Annex 16 p.11). Among the strings concerned by this advice, .mail is mentioned. It does
show, therefore that there is a strong association between .mail and the interests represented
by the Postal Community invoked by the Objector.
115. Moreover, it appears clearly (Annex 27) that the Applicant’s intention is to operate the.mail TLD as a “closed TLD”, i.e. for its own purpose only15. This will give the Applicant acompetitive advantage which may be incompatible with the broad concept of ‘mail’. The
simple fact that the Applicant proposes to use the .mail TLD as “closed generic” issufficient to prove that indeed there is a strong association between the community invoked
and the .mail application.
116. Considering the above, the Expert Panel is of the opinion that UPU has met therequirements for the third test.

D. Does the Application create a likelihood of material detriment?
117. Section 3.5.4. of Module 3 explains that the Objector must prove that there is a likelihoodof material detriment “to the rights or legitimate interests of a significant portion of thecommunity invoked”. In order to analyze this test, the Expert Panel, inter alia, may take
into consideration the nature and extent of damage to the reputation of the community; theevidence that the Applicant is not acting or does not intend to act in accordance with theinterests of the community or the users more widely; the interference with the core15

The Expert Panel is aware of the on-going debate about the so-called « closed gTLDs ». ICANN realized that
this concept was not taken into consideration when it prepared its Applicant’s Guidebook which forms the basis
for decisions in the matter of new gTLDs. ICANN did open a public comment period between 5 February 2013
and 7 March 2013 (See the press release at http://www.icann.org/en/news/public-comment/closed-generic05feb13-en.htm.)

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activities of the community; the dependence of the community on the DNS for its core
activities; the nature and extent of concrete or economic damage to the community; thelevel of certainty that alleged detrimental outcomes would occur.
118. UPU argues that the Applicant’s operation of the .mail TLD “would substantially damage
the Postal Community’s reputation by failing to meet public expectations regarding thereliability, privacy and security of “mail”, which have been established through great effort
by the Postal Community” (Objection p.14) and “threatens to interrupt the smooth andsecure provision of mail services” (Objection p.8). Further, UPU argues that Applicant’s
does not “intend to act in accordance with the interests of the Postal Community and does
not intend to institute effective security protection of user interests” (Objection p.16), while“international mail standards [established by UPU] are critical to the successful handlingand delivery of all international mail” (Objection p.9). Finally it argues that the Applicant’s
intended operation of the .mail TLD will interfere with the core activities of the Postal
Community which do depend on the DNS for its core activities and will suffer concrete andeconomic damage (Objection p.17-19) because ‘mail’ represents “secure communications
and transactions” for the public, because “many national laws mandate a high level of
security and privacy for mail” (Objection p.14-15 and Exhibits 5, 14, 15 and 16). UPU
argues that “the public is likely to view the .mail TLD as identifying members of the Postal
Community, much in the same way as ‘.int’ identifies only international treaty-basedorganizations, ‘.gov’ identifies only US government organizations and ‘.post’ identifies
only verified providers of mail products and services and other members of the global
postal community” (Objection p.16).
119. UPU’s argument is essentially one of confusion by the users between the secured mailservices provided by postal services around the world and the services which will be
provided by .mail websites. This confusion, says UPU, could be such that the .mail TLD“could become overrun with third parties trading off the goodwill of the Posts for illicit
purposes and harming both the public and the goodwill of the Posts”. The premise of UPU
argument is that the terms “mail” and “post” are interchangeable (Objection p.12, 17 and18).
120. Amazon argues, essentially, that because “the mission and purpose of the .mail gTLD is tosupport the Applicant’s ecommerce business, there is no risk of interference with the core
activities of the community invoked by the Objector” (Response p.12 and Annex 27).
Amazon further contests that the terms “mail” and “post” are interchangeable. On the25

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contrary, they “are sufficiently distinct for the Internet users to understand the differences
between .post and .mail” (Response p.13). Further Amazon argues that “case law is clearthat as ‘online commerce becomes commonplace’, the default degree of consumer care isbecoming more heightened” (Response p.13 and Annexes 28 & 29).
121. The Expert Panel considers there are four issues to be analyses here : 1) The users’
potential confusion between “mail” and “post”; 2) The harm to the reputation of the Postal
Community; 3) The lack of security in the .mail Application; 4) The material economic
damage suffered by the Postal Community.
1) The users’ potential confusion between “mail” and “post”
122. The battle of arguments between the Objector and the Applicant on this issue is clearly oneof “anciens” and “modernes”, similar to what occurred in the French intellectual life in thelate XVIIth century. The battle bounces every so often, each time there is a new approach
to some societal evolution. It is still referred to nowadays to signify that some persons in asociety have difficulties accepting more modern ways of doing things. This is not to say, ofcourse, that modern ways are always better and more appropriate to follow, but there iscertainly something of that battle in the discussion between the Objector and the Applicant
over whether the term “mail” is confused with “post” by users.
123. The Expert Panel has analyzed carefully all the dictionary and encyclopedia entries filed by
the Objector (Exhibits 10 to 13) and the Applicant (Annexes 22 to 25). Almost all entries,
even some of those filed by the Applicant, do mention either as a first meaning or as asecond or third meaning that “mail” is meant to be “letters and packages conveyed by the
postal system” or equate “mail” with “post” (See Exhibits 10 to 13 and Annex 25). By
contrast, the first ten results appearing on the lists of various search engines do not show
the word “post” or the words “postal service” as an equivalent to “mail” (Annexes 22). As
was to be expected, Wikipedia in French, Dutch and German equate “mail” with e-mail”(Annex 23). More surprisingly, recent dictionaries in French, Dutch and German do thesame (Annex 24).
124. From that analysis, it appears that the analogy which may have been made in the past
between “mail” and “post”, is now progressively vanishing. However, this is not enough toshow, for certain, whether users are now and will in future confuse “mail” with “post” withall the consequences described by UPU in its Objection if the .mail string is attributed to
the Applicant.

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125. Indeed, as the Circuit Court for the Ninth Circuit has done (see Annexes 28 and 29), eventhough it had to decide a trademark case (which is different from the present
determination), some finer analysis is needed when it comes to users’ potential confusion.
For example, the Expert Panel agrees with the Court of the Ninth Circuit, that “the degreeof consumer care is becoming more heightened as the novelty of the Internet evaporates
and online commerce becomes commonplace”. The Court further determined that “it was
unlikely that a reasonable, prudent consumer would be confused into believing that adomain name that included a product name would necessarily have a formal affiliation withthe maker of the product [...]”.
126. Therefore, it is less probable that Internet users today would be likely to confuse “mail”
with “post”, contrary to what the Objector argues. This may have been different a few years
ago when electronic mail was introduced. Indeed, some users may have been surprised tolearn, after having established an electronic mail box and after having used it for sometime, that the messages received and sent via that box could be hacked and the box takenover by Trojan horses and other non-invited intruders. The Expert Panel is of the opinion
that this time is slowly coming to an end, not so much because “mail” has become acommon word even in a French16, German or Dutch dictionary, but because the mentalities
have evolved with the progressive use of the Internet and the added sophistication of users.
Nowadays, users do know that the use of the Internet for their correspondence does notprovide them with a level of safety equivalent to the one that they enjoy for their physicalcorrespondence. It is indeed doubtful, that users will, tomorrow, attribute the same faith to.mail websites as they do to postal services. It is also doubtful that they would attribute
more faith to .mail websites and mail boxes, than they do today to gmail, hotmail or any
other Internet services which use already the word “mail” in their name.
127. Of course, one must not look at Internet users only in western, developed countries and“users” in the meaning of section 3.5.4. of Module 3 should encompass all kinds of users.
However, the Expert Panel was given no evidence that even in less developed countries,
the confusion between “mail” and “post” would be widespread. The increased use of theInternet and mobile phone services in some less developed countries shows thesophistication that these societies have reached, which is even sometimes higher than inwestern societies.
16

In French, the word « mail » has been known since around 1000 and designates originally either a hammer (itslatin origin) or a promenade. It now has the third meaning of “electronic mail” which was introduced only very
recently into the dictionary.

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128. Considering the above, it is doubtful that users will indeed confuse “mail” and “post” ifthere are, in the future, websites associated with the .mail string.
2) The harm to the reputation of the Postal Community
129. It is not at all evident, from the Objector’s evidence, that indeed a .mail TLD will be run ina harmful manner to the Postal Community. In fact, most of UPU’s arguments are very
speculative in nature.
130. UPU heavily relies on the fact that postal services are a regulated industry to support theargument that, if the application for the .mail string is granted, its operation will bypass
rules and regulations which have been in place for many years. This argument appears
specifically in Poste Italiane’s, Poczta Polska’s and USPS’s public comments. To take thewords of Poczta Polska: “For example, the average, reasonable consumer may be misled
into believing that the unregulated owners of the .mail TLD and second level domains
conform to the same industry standards as their country’s governmental regulated postal
administration when, in fact, they do not.” (Exhibit 7).
131. However, several arguments run contrary to UPU’s and the Posts’ position.
132. In the first place, postal services have, for a long time, been divided between public andprivate operators. This is acknowledged by UPU’s website and the historical backgroundprovided in other UPU documents. It is true that the public sector has taken over fromapproximately the end of the XIXth century until at least the first half of the XXthcentury17. However, the trend towards liberalization of postal services (Annexes 4 to 8, 18
and 21) has not given rise to major problems. Hence, privatization and more competition
do not automatically lead to less regulation or protection.
133. Secondly, the GAC Communiqué already mentioned (Annex 16) covers in its Annex I thequestion of gTLDs which are linked to “Regulated Markets” (Annex 16 p.8). It says:“Strings that are linked 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 trustfrom consumers, and carry higher levels of risks associated with consumer harm”. It adds
that such strings should contain a number of safeguards, notably “Registry operators will[...] comply with all applicable laws, including those that relate to privacy, data collection,
consumer protection [...]”. However, in the list that follows, which includes the strings towhich the safeguards should apply, the .mail TLD does not appear. It is true that the list is
17

Probably with the exception of the UK, as shown by Exhibit 12.

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expressly non exhaustive, but as of 11 April 2013, the GAC did not think that the .mailstring was related to a regulated sector. In itself, this is meaningful. In any case, even iflater the GAC does realize that the .mail string is linked with a regulated sector, its advice
clearly shows that this is not a sufficient reason to block altogether the attribution of thestring, but it recommends that registry operators do not bypass applicable rules andregulations. It further recommends that registry operators “establish a working relationshipwith the relevant regulatory, or industry self-regulatory bodies, [...].” (Annex 16 p.8). In thecase of Amazon, the description of its proposed management of the .mail string (Annex 27
and Exhibit 9) shows an intention to act accordingly.
134. Even if one would accept that there is a potential harm to the Postal Community, that
potential harm being identified in the arguments of UPU, it will be up to ICANN to follow
the recommendation of the GAC so that regulations be scrupulously complied with byregistry operators.
3) The lack of security in the .mail Application
135. This is probably the most important concern voiced by the Objector. This concern is not
specific to the new gTLDs but is a recurring one with the Internet. The Objector
exemplifies the level of privacy and security enjoyed by the mailing system offered by
Postal services around the globe and files three regulations (USA, the UK and Canada)(Exhibit 14) and one press release concerning the Sao Paulo and Curibita Posts in Brazil(Exhibit 15). In addition, the Objector files the Ponemon Institute 2012 study on the Most
Trusted Companies for Privacy (Exhibit 16), also filed by Amazon as Annex 30, whichshows that USPS is ranked fifth among the 10 most trusted companies.
136. The concern is particularly important as to the phenomenon called “data mining” which hasprobably been experienced by any person who has used the Internet either for somepurchase of goods or services or when their mail box has been hacked.
137. Amazon answers that the Ponemon Institute’s study referred to by the Objector (Exhibit 16
and Annex 30) actually ranks Amazon higher than the USPS. The Expert Panel is notcertain about the exact conclusion to be drawn from this study as the methodology used by
the Ponemon Institute is unclear. Having said that, it seems that the Ponemon Institute’s
study is fairly neutral and establishes neither the argument the Objector is trying to makenor the Applicant’s argument.

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138. The fact that Amazon proposes to manage privacy issues according to the Safe Harbor
principles contained in the agreement between the United States and the European Union(see p.8 of Annex 27) is not particularly reassuring for the average citizen, knowing all theprivacy issues which have been publicized in the years since that agreement has been
executed18.
139. Considering the above, and if ICANN goes ahead with the .mail string, it will have to makeparticularly clear that the registry is indeed managing the string with heightened security
and privacy.
4) The material economic damage suffered by the Postal Community
140. Although UPU does not express it in this exact manner, it is to be expected that allowing a.mail TLD will increase the falling in mail volumes already experienced by Postal services
around the world. Annex 20, i.e. ARCEP Report on ARCEP’s Mission to the United States,
and Annex 18, i.e. the Eurostat Postal Services statistics, filed by Amazon, are telling inthis respect. The ARCEP Report mentions that mail volumes have dropped by 20% since2006, due partly to the advent of e-mail (p.46 of Annex 20). In addition, the projection isthat in 2020, the mail volume will drop to the level of 1986. This trend will only increase if
the .mail TLD goes forward.
141. However, the Expert Panel has noticed that Amazon does insist that it will run the .mailregistry as a “closed TLD” only for its own business purposes (Annex 27, notably answers
to questions 18b and 28). Therefore, it remains unclear how this purpose will impact theeconomic market of the mail and postal services around the world.
142. UPU also argues that the establishment of a .mail TLD will run to the detriment of the .post
sponsored TLD. UPU offers no evidence in support of this argument. For example UPU
does not say how much revenue, if any, the .post TLD generates for UPU and/or the postal
industry around the world. Without those figures, the argument is speculative in nature. In
addition, because the Applicant proposes to operate the .mail TLD as a “closed TLD”, itseems that the economic harm could be minor.
143. Although the extent of the economic harm is uncertain considering the Applicant’s
intentions, the harm is probable and satisfies the requirement that there be “a likelihood ofmaterial detriment” under Section 3.5.4. of Module 3.

18

This is public knowledge and one may consult regularly the websites of the European privacy protection
agencies to find out the difficulties experiences with the Safe Harbour agreement.

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5) Conclusion on the Fourth test
144. The harm is probable. However, most of the concerns expressed by the Objector can be met
and corrected by a sound policy taken by ICANN and solid rules to implement that policy
and control its application.

V. FINAL CONCLUSION BY THE EXPERT PANEL
145. For each of the four tests which the Expert Panel had to run in order to decide on the
Objection, the Expert Panel finds as follows:
UPU has standing as it is an established institution which has an ongoing relationshipwith a clearly delineated community.

The Objection does not appear to be substantial.

The Application clearly targets the Postal Community.

The material detriment to the community invoked by the Objector is probable. The
privacy and security issues can be easily addressed by ICANN if it decides to go ahead
with the attribution of the .mail TLD. The economic harm is probable and may be
avoided only if the .mail TLD is not attributed.

146. Considering the above conclusions for each of the four tests and the strict rules establishedby ICANN, the Expert Panel has no other possibility that either reject or accept the
Objection (Procedure, Art. 21 (d)). In addition, as stated above, the Objector bears theburden of proof and the four tests are cumulative, i.e. if the Objector misses only one test,
the Objection must be rejected. Therefore, because the Objector has not brought enoughevidence on the second test, the Objection must be rejected.
147. The additional request by the Objector to reject “all other current and future applications
for the .mail TLD” (Objection p.19), is dismissed pursuant to Articles 2(e)(iv) and 21(d) of
the Procedure, the Expert Determination being limited to deciding on the specificapplication which is the subject of the proceedings.

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VI. EXPERT DETERMINATION COSTS
148. Pursuant to Articles 14(e) and 21(d) of the Procedure, the Expert Panel is compelled tofollow the “costs follow the event” rule “”. One may regret the automaticity of the rule,particularly with regard to the complexity of the issues raised by the Objector and theApplicant. The lack of flexibility does not allow the Expert Panel to take into consideration
the nuances of the Determination and the fact that the Objector raised issues which are far
from being frivolous. Dura lex, sed lex! The Objection being rejected, albeit with manycaveats, the Objector has to bear the entire costs of the proceedings.

VII. DECISION
149. For the above reasons, and accordance with Article 21(d) of the Procedure, I hereby render
the following Expert Determination:
1. UNIVERSAL POSTAL UNION’s Objection is rejected;
2. The Applicant, AMAZON EU S.A.R.L., prevails;
3. AMAZON EU S.A.R.L.’s advance payment on costs shall be refunded by the Centre.
Place of the proceedings: Paris, France
Date: 20 January 2014

Professor Catherine Kessedjian
Expert32