THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/421/ICANN/38

FÉDÉRATION INTERNATIONALE DE SKI(SWITZERLAND)
vs/WILD LAKE, LLC(USA)This document is an original of the Expert Determination rendered in conformity with the
New gTLD Dispute Resolution Procedure as provided in Module 3 of the gTLD Applicant
Guidebook from ICANN and the ICC Rules for Expertise.

TABLE OF CONTENTS

A .......INTRODUCTION........................................................................................................................... 3
B.

C.

PROCEDURAL HISTORY ............................................................................................................ 4
B.1

Administrative review of the Objection, and Response ................................................. 4

B.2

Appointment of the Expert ............................................................................................. 4

B.3

Reply and Sur-Reply ..................................................................................................... 5

FINDINGS IN RELATION TO STANDING ................................................................................... 6
C.1'Threshold Considerations' ............................................................................................ 6

C.2'Guidebook Elements'.................................................................................................... 7

D.

FINDINGS IN RELATION TO THE SUBSTANTIVE REQUIREMENTS..................................... 12E.

DETERMINATION ...................................................................................................................... 222

EXPERT DETERMINATION OF A COMMUNITY OBJECTION TO AN APPLICATION FOR A NEW
GENERIC TOP-LEVEL DOMAIN NAME (<.SKI>)

The undersigned Expert, appointed by the ICC's International Centre for Expertise to sit alone as theExpert Panel in the above-referenced matter, hereby issues the following Expert Determination
resolving the above-referenced objection:A

INTRODUCTION

1.

This dispute arises under the programme established by the Internet Corporation for Assigned
Names and Numbers ('ICANN') for the operation of new generic top-level domain names(‘gTLD’). Background information about that programme can be found in the ICANN GenericNames Supporting Organisation, Final Report, Introduction of New Generic Top-Level
Domains, 8 August 2007 (the ‘GNSO Final Report’).

2.

thWild Lake, LLC of 155 108 Avenue NE, Suite 510, Bellevue, WA 20166, United States ofAmerica (the 'Applicant'), represented by John M. Genga and Don C. Moody of The IP &Technology Legal Group, P.C., 15260 Ventura Blvd. Suite 1810, Sherman Oaks, CA 91403,
USA, is a subsidiary of Donuts Inc., which has applied (either directly or through its affiliatedenterprises, including the Applicant) for more than 300 new gTLDs.

3.

Fédération Internationale de Ski of Blochstrasse, 2, CH-3653 Oberhofen/Thunersee,
Switzerland (the 'Objector'), is an association organised under Swiss law.

4.

On 13 June 2012, the Applicant submitted an application for the new gTLD <.SKI> (Application
No. 1-1636-27531: the 'Application'). On 13 March 2013, the Objector filed a 'Community
Objection' to the Application, i.e., it objected to the Application on the basis that ‘there issubstantial opposition to the gTLD application from a significant portion of the community towhich the gTLD string may be explicity or implicitly targeted’ (the 'Objection').

5.

The purpose of these proceedings is to determine whether or not the Objection is well-founded
and should therefore prevail over the Application. The rules that govern this matter are (1) the
ICANN’s gTLD Applicant Guidebook (v. 2012-06-04) (the ‘Guidebook’); (2) in particular, theNew gTLD Dispute Resolution Procedure attached to Module 3 of the Guidebook (the‘Procedure’); and (3) the Rules for Expertise of the ICC (the ‘Rules’), as supplemented by (4)the ICC Practice Note on the Administration of Cases under the New gTLD Dispute Resolution
Procedure. Article 20 of the Procedure states that to determine whether an objection to an
application for a new gTLD should prevail, ‘the Panel shall apply the standards that have been
defined by ICANN.

In addition, the Panel may refer to and base its findings upon thestatements and documents submitted and any rules or principles that it determines to be
applicable’. The standards defined by ICANN in relation to Community Objections to new gTLD

3

applications are set out in Module 3 of the Guidebook, and the most relevant parts are quoted
below.
B.

PROCEDURAL HISTORY
B.1

6.

Administrative review of the Objection, and Response

Under Article 3(d) of the Procedure, Community Objections are administered by the ICC’s
International Centre for Expertise (the 'Centre'). On 2 April 2013, the Centre completed its
administrative review of the Objection, determined that the Objection complied with allapplicable requirements, and therefore notified the Applicant of the Objection on 15 April 2013.

7.

The Applicant filed a response to the Objection on 16 May 2013 (the ‘Response’).
B.2

8.

Appointment of the Expert

On 19 June 2013, the Centre notified the parties that it had appointed the undersigned,
Jonathan Taylor of Bird & Bird LLP, 15 Fetter Lane, London, UK, to sit alone as the Expert
determining this matter, and provided them with the undersigned’s Declaration of Acceptanceand Availability, Statement of Impartiality and Independence, in which the undersigned had
included the following statement:
Acceptance with disclosure: I am impartial and independent and intend to remain so. However,mindful of my obligation to disclose any facts or circumstances which might be of such a nature
as to call into question my independence in the eyes of any of the parties or that could give rise
to reasonable doubts as to my impartiality, I draw attention to the matters below … .
Neither my firm nor I has ever acted for either party. However, I do know Sarah Lewis of FIS. I
met her in 2007, when I advised a working party convened by the World Anti-Doping Agency toconsider revisions to the International Standard for Testing, and she was a member of that
Working Party. I have seen her at anti-doping seminars from time to time since then. I do notconsider this affects my independence and impartiality but note it in the interests of full
disclosure.

9.

On 1 July 2013, the Applicant objected to the appointment of the undersigned as Expert in thismatter on the following grounds:'Applicant has considered and appreciates Mr. Taylor’s

disclosure [that he personally knows and has specifically worked with someone within
Objector’s organization]. It does not doubt his best intentions when he states that he does notexpect that his professional familiarity with Sarah Lewis of FIS would affect his independence
and impartiality. However, Applicant respectfully submits that the connection between the two
impacts the appearance of impartiality, regrettably making disqualification of Mr. Taylor
appropriate'. The Objector opposed that request on 1 July 2013, asserting that there were no
factual grounds to doubt the undersigned's independence and impartiality.
10.

On 12 July 2013, the Centre requested that the undersigned provide his comments on the
Applicant's objection (which it treated as a request for replacement of the Expert).
undersigned provided the following comments on 16 July 2013:
4The

My understanding is that the Applicant is not suggesting actual bias on my part. I am grateful forthat and can confirm it would be my clear intention and commitment to decide the matter basedon the merits alone.
However, the Applicant is concerned that there is an 'appearance of bias' that necessitates myreplacement as Expert in this matter. It is for others to decide whether this is a proper ground for
objection under the applicable rules and, if so, what is the proper test to determine if appearanceof bias exists. (For what it is worth, the test under English law would be whether the facts would
lead a fair-minded and informed observer to conclude that there was a real possibility that I would
be pre-disposed or prejudiced in favour of the Objector and/or against the Applicant for reasons
unconnected with the merits of the case). For my part, I would only say that I do not think it
unreasonable for the Applicant to raise this concern and I am not offended in any way by its
doing so.
I obviously could not rule on any such objection myself. I can only comment on the relevantfacts, as to which I can confirm that the Objector is correct in saying that (a) neither my firm nor I
has ever acted for either party in the past; (b) I have never been engaged by or acted for FIS 'as
legal counsel, advisor or suchlike'; (c) I was instructed by WADA to work on the revision of theInternational Standard for Testing in the period 2007-2009; (d) WADA also convened a working
party (which had 8 members in total, as I recall, including Sarah Lewis) of representatives of
stakeholders to provide their input into proposed revisions to the Standard, and I attended themeetings of that working party; (e) no register was taken of attendance at meetings so I cannot
specifically confirm that Ms Lewis attended only two meetings of the working party, but I recall
that she did not attend all of the meetings and that her assistant Ms Fussek took on some of therole on her behalf at some point; and (f) while I am currently working on a further revision of theInternational Standard for Testing for WADA, neither Sarah Lewis nor anyone else from the FIS
is involved in that process.

11.

On 25 July 2013 the Chairman of the Standing Committee of the Centre rejected theApplicant's request for replacement of the Expert, and confirmed the appointment of theundersigned as Expert in this matter. On 26 July 2013 the file was transferred to the Expert.
All subsequent communications between the Parties, the Expert and the Centre were submitted
electronically pursuant to Article 6(a) of the Procedure. The language of all submissions andproceedings was English pursuant to Article 5(a) of the Procedure.
B.3

12.

Reply and Sur-Reply

On 27 June 2013, the Objector sought to make a supplementary submission (the 'Reply'),'solely for the purpose of responding to certain factual and legal inaccuracies set forth in' the
Response. By email dated 4 July 2013, the Applicant objected to the Reply and asked that it
be rejected without consideration.

13.

On 2 August 2013, the Expert advised the parties that he was willing to accept the Reply, in
exercise of the discretion given to him under Article 17 of the Procedure, on the basis that the
Applicant would have two weeks to file any response to the Reply that it saw fit. The Applicant
submitted such response (the ‘Sur-Reply’) on 16 August 2013.

14.

Neither party has sought leave to file any further submissions since then, and therefore therecord is considered complete. No hearing was requested or took place.

15.

Article 21(a) of the Procedure provides that the Centre and the Expert shall make reasonable
efforts to ensure that the Expert renders his decision within 45 days of ‘the constitution of the
Panel’. The Centre considers that the Panel is constituted when the Expert is appointed, the5Parties have paid their respective advances on costs in full and the file is transmitted to theExpert. In this case, the Panel was constituted on 26 July 2013. The Centre and the Expert
were accordingly to make reasonable efforts to ensure that his determination was rendered nolater than 9 September 2013 (as calculated in accordance with Articles 6(e) and 6(f) of theProcedure). Pursuant to Article 21(b) of the Procedure, the Expert submitted his determinationin draft form to the Centre for scrutiny as to form before it was signed.
16.

The Expert has considered carefully all of the submissions made and the materials put forward
by the Objector (in the Objection and the Reply) and by the Applicant (in the Application and
the Sur-Reply) to determine whether the Objection satisfies the standards defined by ICANN
and set out in Module 3 of the Procedure. The Expert's findings are set out below, first in
relation to standing and then in relation to the substantive requirements.

C.

FINDINGS IN RELATION TO STANDING (SECTIONS 3.2.2 AND 3.2.2.4 OF THE
GUIDEBOOK)

17.

The Guidebook states that to be 'eligible' to file a Community Objection, the objector must showthat it is an ‘established institution associated with a clearly delineated community’ that is‘strongly associated with the applied-for gTLD string’. (Guidebook sections 3.2.2 and 3.2.2.4).
However, it then states that 'standing' to make the objection is established by proof that theobjector is an ‘established institution associated with a clearly delineated community’, andappears to leave the issue of whether that community is ‘strongly associated with the appliedfor gTLD string’ to the substantive part of the process. The Expert will therefore do the same.
(See section D.3 below).
C.1

18.

'Threshold Considerations'

Before getting to the 'Guidebook Elements' of the standing requirements, however, theApplicant raises two 'Threshold Considerations'. (Response pp.5-6).

19.

First, the Applicant states that 'the Objector's organization' does not 'constitute a "community"
as ICANN contemplated it.

… ICANN envisaged a "community" as a locality, a group ofindividuals sharing specific characteristics or interests, or entities that provide common
services.

See, e.g., AGB s.4.2.3 at 4-11.

It did not intend for private parties purportedly

representing an entire industry to claim community status. Id.' (Response pp.6-7). However,these citations are to Module 4 of the Procedure, relating to a Community-Based Evaluation
conducted as part of a string contention procedure, where the applicant for a new gTLD has toshow that it will operate the gTLD on behalf of a community. That is an entirely separate
process from the objection procedure set out at Module 3 of the Procedure, which is the
Module that governs these proceedings.

The standing requirements for Community

Objections, as specified in Module 3, are set out and discussed in detail in the next section ofthis Expert Determination. Either the Objector can meet those requirements or it cannot, but if

6

it can, then whether or not it could also meet requirements set out in a different Module inrelation to a string contention procedure is irrelevant.
20.

Second, the Applicant notes that if a party (or an affiliate) makes a community-based
application for a new gTLD, and there is also a standard (i.e., not community-based) application
for the same gTLD, then that will trigger a string contention procedure under Module 4 of theProcedure, in which the community-based application will prevail over the standard application
if it passes the 'Community Priority Evaluation' set out in that Module 4. The Applicant assertsthat in that situation, it is an 'abuse [of] the process' for the community-based applicant also to
file an objection to the standard application, in order to get 'a "free shot" at eliminating its
principal's competitor'. The Applicant says that is what the Objector is doing here, since it is a'proxy' for Starting Dot SAS, which has made a community-based application for the <.SKI>
gTLD. It says the Expert 'should not countenance such subversive behaviour'. (Response,
pp.6-7). In other words, if you (or your affiliate) make a community-based application for a newgTLD and someone else makes a standard application for that same gTLD, you are confined tothe string contention procedure, and do not have standing to object to the standard application
as well. Otherwise, 'there would be no need for both processes'. (Sur-Reply p.1).

21.

The Objector disagrees, noting: 'This assertion is not part of the criteria set by ICANN in the
Applicant Guidebook related to the standing of an Objector. Applying for a TLD or supporting
an existing Application which serves the interest of a community does not prevent the samecommunity to defend its rights and interests against any other application the community
consider as detrimental to its interests'. (Reply p.2).

22.

The Expert agrees with the Objector. If ICANN had intended that a community had a choice ofeither making a community-based application for a new gTLD or opposing a standard
application for that new gTLD, but not both, it could easily have said so in the Guidebook.
Whereas in fact section 3.2.2 of the Guidebook states what a party must show to establish
standing to bring a Community Objection; and section 3.2.2 does not require the party to showthat neither it (nor anyone associated with it) has filed a community-based application for thesame gTLD. If there was nevertheless such a requirement, tucked away somewhere else, one
would assume that the Centre would have disallowed the Objection on that basis alone during
its administrative review, i.e., there would have been no need to appoint an Expert to deal with
it. The Expert therefore finds there is no such requirement: the fact that the Objector isassociated with a community-based application for the <.SKI> gTLD does not prevent it fromfiling the Objection to the (standard) Application for that gTLD.
C.2

23.

'Guidebook Elements'

Focusing, then, on the 'standing' requirements set out in Module 3 of the Guidebook (identified
at paragraph 17 above), the Objector must show that it is (i) an established institution (ii)associated with (iii) a clearly delineated community. The Guidebook identifies factors that may
7be considered in determining these issues, but explains that ‘[t]he panel will perform abalancing of the factors listed above, as well as other relevant information, in making its
determination. It is not expected that an objector must demonstrate satisfaction of each andevery factor considered in order to satisfy the standing requirements’. (Guidebook, section
3.2.2.4).
24.

First, then, is the Objector 'an established institution'?
24.1

According to the Guidebook (at p.3-8), ‘[f]actors that may be considered in making
this determination include, but are not limited to, level of global recognition of theinstitution; length of time the institution has been in existence; and public historicalevidence of its existence, such as the presence of a formal charter or national orinternational registration, or validation by a government, inter-governmentalorganization, or treaty.

The institution must not have been established solely in

conjunction with the gTLD application process’.
24.2

The Objector states that it is an association organised under Swiss law that has been
in existence since 1924, and that it is recognised by the International Olympic
Committee as the sole international governing body for ski sport, governing,
regulating and administering ski sport around the world, and directing thedevelopment and promotion of ski sport both at the recreational level and atcompetitive level (local, national, world, and Olympic level competition), directly
and/or through its 115 member national federations. (See FIS Statutes, Article 2,
Objection Annex 4; and list of registered members, Objection Annex 10).

For

example, the Objector organises the ski sport events at the quadrennial WinterOlympic Games, as well as World Championships, World Cups and Continental
Cups, 'which total around 7,000 international competitions globally each year
involving the nine ski disciplines of Cross-Country Skiing, Ski-jumping, Nordic
Combined, Alpine skiing, Freestyle Skiing, Snowboard, Speed Skiing, Grass Skiing
and Telemark'. (Objection p.5).
24.3

The Applicant says that ‘independent evidence’ of the existence and 'global
recognition' of the Objector is required, and that copies of its Statutes, 'entirely
unsworn statements', and references to 'its self-promotional website', do not satisfy
this requirement. (Response p.6). However, the Applicant does not cite any authority
for this alleged requirement, and in fact as far as the Expert is aware there is no suchrequirement. To the contrary, according to the Guidebook, an institution’s existence‘may’ be demonstrated by ‘public historical evidence of its existence, such as thepresence of a formal charter or national or international registration, or validation by agovernment, inter-governmental organization, or treaty’. (Guidebook, section 3.2.2.4).
The ‘may’ indicates that this is not mandatory, i.e., other evidence may suffice. Suchevidence comes here in the form of the Objector's detailed account of its creation, its
8history, its current membership, and its extensive activities as the international
governing body of ski sport. That account may be 'unsworn', but in the absence ofany suggestion from the Applicant that any of it is untrue, the Expert is prepared toaccept its accuracy. And as a result, it is more than clear, in the Expert's view, that
the Objector's existence as an established institution has been sufficiently evidenced.
25.

Next, is the community on behalf of which the Objector claims to bring the objection 'a clearlydelineated community'?
25.1

According to the GNSO Final Report, the term ‘community’ ‘should be interpreted
broadly and will include, for example, an economic sector, a cultural community, or a
linguistic community.
impacted’.

It may be a closely related community which believes it is(GNSO Final Report, Implementation Guideline P).

According to the

Guidebook, factors that may be considered in determining whether the 'community'
identified by the objector is a clearly delineated community ‘include, but are not limited
to, … the level of formal boundaries around the community’.
25.2

The Objector brings the objection on behalf of 'the Ski community'.

It says that

community 'is highly organized on local, national and international levels. It is clearlydelineated by way of its organizational structure, its values and specialized equipment
and resorts'.

(Objection p.4).

It identifies the following persons and entities as

members of that community (ibid. pp.4-6):
25.2.1 Itself, as the sports federation recognised by the IOC as having sole authority
to govern and regulate ski sport on a global level, and to organise the ski sport
events at the Winter Olympic Games.
25.2.2 Its 115 member national federations (from all five continents), whose
responsibility is to govern and regulate ski sport on behalf of the FIS at thenational level, directing the developing and promotion of ski sport both as arecreational pastime and as a competitive activity, from the amateur level up tonational level and beyond.
25.2.3 The local and regional ski clubs, ski schools, and individuals who are membersof the FIS’s member national federations. This includes those who compete atinternational-level competition (for example, in 2012 more than 34,000
registered athletes competed in international ski sport competitions: Objection
Annex 20), as well as those who only compete at national level and below.
25.2.4 In addition, some member national federations admit leisure skiers as
members. Eleven of FIS’s member national federations together have morethan 3 million individual members. (Objection Annex 9). And while others do

9not, leisure skiers in those countries still 'consider themselves part of the broad
ski community', and they can be clearly identified by a 'physical boundary', inthat 'without use of equipment … and access to alpine ski slopes or crosscountry courses, it is not possible to be a skier'.
25.3

In response, the Applicant states first that to be 'clearly delineated' the community must
be 'strongly associated with the applied-for gTLD string'. It says this means 'the word"ski" must readily bring Objector's organization to mind. Merely stating that proposition
reveals its folly'. (Response, p.6). The Expert does not agree with this analysis. It
conflates the Objector with the community that it is claiming to represent, and it also
conflates the requirement that the community be 'clearly delineated’ with therequirement that the community be 'strongly associated with the applied-for gTLD'. The'strong association' requirement is a distinct one, to be addressed separately. (Seesection D.3 below).

25.4

The Applicant asserts that the Objection 'fails to identify what comprises [the Ski
community] or what "boundaries" surround it, and instead simply describes theboundaries of its own structure'. (Response p.6). The Expert does not agree. The
Objection describes with specificity those who are in 'the Ski community' that it claims
to speak for, and how they are identified. (See paragraph 25.2 above). In fact, thecommunity it describes extends beyond 'the boundaries of its own structure' toencompass leisure skiers who are not in membership of one of its member national
federations, but that does not matter: the Objector and the community it says it speaks
for do not have to be coterminous.

25.5

The Applicant notes that 'the Ski community' that the Objector claims to speak for
excludes many people who have an interest in 'ski' topics, such as 'spectators,
enthusiasts, consumers, retailers, journalists, commentators, historians and others, andinvolves other activities such as water, sand and jet skiing, to name a few'. (Responsep.7). But this is not an argument that the Ski community identified by the Objector is
not clearly delineated. Rather it is a separate and distinct argument, that the gTLD<.SKI> and the Ski community identified by the Objector are not synonymous. Thatargument is addressed at paragraph 42 below.

25.6

The Applicant also asserts that the 'community' defined by Starting Dot in its separate
community-based application for the gTLD <.SKI> is not clearly delineated. (Responsep.7). Whether or not that is true is not for the Expert to decide; all that is relevant here
is whether the community that the Objector claims to speak for in relation to thisObjection is clearly delineated. For the reasons set out above, the Expert finds that it
is.

10

26.

Finally, is the Objector 'associated with' the Ski community?
26.1

According to the Guidebook, factors that may be considered in determining whether theobjector is associated with the community in question ‘include, but are not limited to,the presence of mechanisms for participation in activities, membership, and leadership;
institutional purpose related to the benefit of the associated community; performance ofregular activities that benefit the associated community; …’. (Guidebook pp. 3-8).

26.2

Clearly the Objector is associated with its member national federations and theirmembers, all of whom can benefit (by means of membership and/or registration) fromparticipation in competitive ski sport as organised and/or sanctioned by the FIS and its
members. The Objector runs an Aid & Promotion programme through which it has
provided financial support for 50 national ski associations. (Objection p.6). It has alsoorganised a Symposium on the Development of Alpine Ski Sport to investigate cost
reduction strategies for top level alpine ski competition, which has involved working withrepresentatives of the ski industry and national ski associations. (Objection, Annex 6p.58).

26.3

However, the Objector asserts that it also works for the benefit of those leisure skiers
who may not be formally members of one of its member national federations, but who
nevertheless participate in the sport on a recreational level. For example, the Objector
backs projects such as 'Bring Children to the Snow' and 'World Snow Day’. (Objection
Annex 6 p.59).

1

In addition, it has promulgated the '10 FIS Rules of Conduct of Skiersand Snowboarders' (Objection Annex 16 pp.2-5), which are 'considered globally as thelaws for conduct on the [ski] pistes' (Objection Annex 19 p.5) and are adopted by'hundreds of ski resorts all over the world to define and encourage safe behaviour on
the slopes'.
26.4

The Applicant asserts that '[t]he only information that [the Objector] offers concerning
its activities consists of unsworn statements in the Objection and reference to its selfserving statutes and website.

Such sweeping pronouncements with no evidentiary

support do not demonstrate an institutional purpose or activities to benefit its putative
community'. (Response p.7). Again, the Expert is not aware of any requirement that
evidence offered in support of the Objection be 'sworn'.

Given the detail that the

Objector has provided in relation to those activities, and in the absence of any

1

According to the Objector (and not disputed by the Applicant), 'Bring Children to the Snow' is 'designed
to be a worldwide campaign to encourage children and families to skiing and the snow'. The second phase of thecampaign is the annual event 'World Snow Day', a project initiated and co-ordinated by the Objector to raise
public awareness of 'the pleasures that can be enjoyed through activities in the snow'. The World Snow Day
website states that the project 'looks beyond FIS membership to the wider snow sports community' and indicatesthat 435 events were organised across 39 countries on World Snow Day 2013 (www.world-snowday.com/cmsfiles/2nd_edition_world_snow_day_ final_report.pdf).
11

suggestion from the Applicant that anything the Objector says is untrue, the Expert
accepts its accuracy.
26.5

The Applicant asserts that the Objector lacks 'any significant relationship with asubstantial portion of the community it claims to represent' (Response p.7), but it basesthat assertion not on the description of Ski community put forward by the Objector but
on the description of community included in Starting Dot's community-based application
for the gTLD <.SKI>, which is not relevant for purposes of these proceedings. (Seeparagraph 25.6 above).

26.6

The Expert therefore finds that the Objector is 'associated with' the Ski community thatit has identified in the Objection.

27.

Based on the foregoing, the Expert determines that the Objector meets the standing
requirements set out in sections 3.2.2 and 3.2.2.4 of the Guidebook, and therefore has standing
to object to the Application.

D.

FINDINGS IN RELATION TO THE SUBSTANTIVE REQUIREMENTS FOR A COMMUNITYOBJECTION (SECTION 3.5.4 OF THE GUIDEBOOK)

28.

The Applicant correctly states (Response p.8) that there is a presumption in favour of granting
new gTLDs, and therefore a corresponding burden on those who object to an application for a
new gTLD to show why the application should not be granted. (See Guidebook, section 3.5).
For example, to sustain a Community Objection, the Objector must show that ‘there issubstantial opposition to the gTLD application from a significant portion of the community towhich the gTLD string may be explicitly or implicitly targeted’. (Ibid., section 3.2.1). According
to section 3.5.4 of the Guidebook, in order to do that, the Objector must satisfy each of thefollowing four substantive requirements. If it does so, it has made the requisite showing; if it
does not, then it has not.
D.1

29.

The Objector must prove that 'the community invoked by the objector is a clearlydelineated community'

The Guidebook states: ‘The objector must prove that the community expressing opposition canbe regarded as a clearly delineated community. A panel could balance a number of factors todetermine this, including but not limited to: the level of public recognition of the group as acommunity at a local and/or global level; the level of formal boundaries around the community
and what persons or entities are considered to form the community; the length of time thecommunity has been in existence; the global distribution of the community …; and the numberof people or entities that make up the community. If opposition by a number of people/entities
is found, but the group represented by the objector is not determined to be a clearly delineatedcommunity, the objection will fail’.

12

30.

The Expert has already determined, in the context of the standing requirements, that thecommunity on behalf of which the Objector claims to bring the objection is 'a clearly delineatedcommunity'. (See paragraph 25 above). Having done so, it would seem difficult (to say theleast) for the Expert not to find, in this new context, that 'the community invoked by the objector
is a clearly delineated community'.

31.

The Applicant disagrees, asserting that the test here must be 'more stringent' than the test
applied in the context of standing, because 'ICANN would have no reason to make "clearlydelineated" a substantive element of objection if it meant nothing more than the criterion forstanding. Rules "should be interpreted so as not to render one part inoperative"'. (Response
p.8).

It therefore proposes the following test:'Objector must show that the string itself

describes a clearly delineated community', and asserts that the word 'ski' has several different
meanings, including water-skiing and sand-skiing, and therefore does not meet that test.
(Ibid.).
32.

The Expert rejects this argument, for the following reasons:
32.1

Where a set of rules uses a specific phrase ('clearly delineated community') twice, itwould be very strange to interpret that phrase one way the first time it appears andanother way the second time it appears. Indeed, that approach is so counter-intuitivethat absolutely compelling grounds would be required to adopt it.

32.2

Without wishing to split hairs, technically speaking, interpreting the phrase in the sameway each time it appears does not render the second requirement 'inoperative' (as the
Applicant suggests) – the Objector has to show that he meets it. Rather, it renders thesecond requirement redundant (because it does not add anything to what has gone
before).

Redundancy is never ideal, but the Expert does not consider it to be acompelling reason to construe the same phrase differently in two parts of the same
rule.
32.3

The fact that the Applicant suggests that 'clearly delineated community' as it appears in
the first substantive requirement should be construed to mean that the 'Objector mustshow that the string itself describes a clearly delineated community' is both ironic(because the Applicant also suggests that that is how the third substantive requirement
should be construed [see paragraph 42 below], i.e., it proposes the same redundancy
that it says the Expert should avoid) and unhelpful to the Applicant (because [as noted
below: see paragraph 42] there is no support for any such test either in the Guidebook
or in the material that the Applicant cites in purported support of that test).

32.4

While there is no system of binding precedent in expert determination proceedings, theExpert notes that another expert considering a Community Objection under exactly thesame rules as apply here has found that the first substantive requirement is satisfied by13

satisfaction of the second standing requirement: see Case No. EXP/493/ICANN/110(<.FLY>), Expert Determination dated 3 September 2013, para 13.
33.

As a result, since the Expert has already found (in the context of the second standing
requirement) that the 'Ski community' that the Objector invokes in the Objection is a clearlydelineated community, it follows that the Objector has also satisfied this first substantive
requirement.
D.2

34.

The Objector must prove that 'community opposition to the application issubstantial'

The Guidebook states (at section 3.5.4): ‘The objector must prove substantial opposition within
the community it has identified itself as representing. A panel could balance a number offactors to determine whether there is substantial opposition, including but not limited to:number of expressions of opposition relative to the composition of the community; therepresentative nature of entities expressing opposition; level of recognised stature or weight
among sources of opposition; diversity amongst sources of expressions of opposition, including
regional, subsectors of community, leadership of community, membership of community;
historical defence of the community in other contexts; and costs incurred by objector in
expressing opposition, including other channels the objector may have used to convey
opposition. If some opposition within the community is determined, but it does not meet thestandard of substantial opposition, the objection will fail’.

The Applicant suggests that the

Objector must establish each of these factors (Response p.9), but in fact the words quoted
make it clear that these factors are not an exhaustive list of relevant factors, and that the
Objector may meet its burden by establishing all of them, or some of them, or even none ofthem, provided that it establishes enough relevant factors (which may or may not be factors
listed in the Guidebook) to outweigh any countervailing factors established by the Applicant.
35.

The Objector states that it has received 'not just significant, but overwhelming' support from theSki community for the Objection, both from its 115 member federations, and from six leadinginternational ski sport related organisations: (i) the International Olympic Committee (the leaderof the Olympic Movement); (ii) the World Anti-Doping Agency (an institution whose
stakeholders are half members of the Olympic Movement and half public/governmental
authorities); (iii) the International Ski Instructor Association (a body representing professionalski instructors from 39 countries); (iv) the Ski Racing Supplier's Association (which has 57
industry members:

Objection Annex 11); (v) the World Federation of the Sporting Goods

Industry; and (vi) the National Ski Areas Association (a trade association for ski area owners
and operators that represents 325 resorts in Colorado and 472 suppliers providing equipment,
goods and services to the mountain resort industry). (Objection p.8 and Annex 11).
36.

The Applicant says these assertions of support are worthless because the letters from the six
bodies listed that are annexed to the Objection 'reflect no independent thought showing
14

genuine opposition by each such member itself', no evidence is provided about the 'stature' of
those bodies, and they do not 'add up to a meaningful number of expressions of opposition
within the larger ski "community" that Objector claims to represent'. (Response p.9).
37.

The Expert does not agree with the Applicant's criticisms of the letters of support from the six
listed institutions, nor does he agree that their 'stature' is questionable.

Furthermore, theopposition of the Objector as the international governing body of the sport and its 115 member
federations must also be weighed in the balance.

The Expert finds that the Objector has

satisfied this second substantive requirement.
D.3
The Objector must prove that 'there is a strong association between thecommunity invoked and the applied-for gTLD string'
38.

The Guidebook states (at section 3.5.4):‘Targeting.

The objector must prove a strong

association between the applied-for gTLD string and the community represented by theobjector. Factors that could be balanced by a panel to determine this include but are notlimited to: statements contained in application; other public statements by the applicant; andassociations by the public. If opposition by a community is determined, but there is no strong
association between the community and the applied-for gTLD string, the objection will fail’.
Again, the Applicant suggests that this is a definitive list, and the Objector must satisfy thisrequirement by reference to these factors and these factors alone.

Again, the Expert

disagrees, for the same reasons as before. (See paragraph 34 above).
39.

The Applicant says it is not 'targeting' the string 'toward any particular community, let alone thatwhich Objector claims to represent'.

(Response p.10).

But the Objector notes that the

Application itself states that the <.SKI> gTLD 'will be appealing to the millions of people andorganizations who are involved with or who simply enjoy the many variations of skiing, including
alpine, snowboard, cross-country, telemark, as well as water, and sand skiing'. The Objector
notes that the Ski community for which it speaks encompasses all such persons andorganizations, save only for those involved in water-skiing and sand skiing. It further assertsthat the word 'ski' calls those ski sports to mind for most people (including as a result of thewide television coverage of the competitions it organises in each of those sports). (Objectionp.9). In addition, the Objector provides spelling and phonetic evidence that the word 'ski' isused (or recognised) in the local language of 12 of the top 16 countries for snow ski visits.
(Objection Annex 8).

As those 12 countries represent 79% of global snow ski visits, theObjector alleges that the ski community is therefore 'clearly recognized by the single word SKI
by at least 79% of the relevant global ski-related population', in their local language. (Objection
p.7).
40.

The Applicant in contrast insists that the word 'ski' has 'multiple meanings … apart from theinterests for which Objector lobbies', so it cannot be said to be 'strongly associated' solely with
the Ski community. (Response p.10). The Applicant presses this point more firmly in its Sur15

Reply, arguing that the Objector must show that the applied-for gTLD 'uniquely or nearly
uniquely identifies' the community the Objector is representing, and that it cannot meet thisrequirement because the word 'ski' encompasses many meanings and activities other than justsnow-skiing. (Sur-Reply p.2).
41.

The Expert agrees that the word 'ski' does not mean snow-skiing alone. It is also used in theseparate sports of water-skiing and (apparently) sand-skiing, albeit that it must be fair to saythat the number of adherents to those sports is very small compared to the number ofadherents to the ski sports that the Objector represents. (Indeed, the Expert admits that he had
never even heard of sand-skiing before this case). So if the Applicant is right that the Objector
must show that the <.SKI> gTLD 'uniquely or nearly uniquely identifies' the Ski community that
the Objector represents, there could perhaps be an argument about whether the number ofsnow-skiers relative to the number of water/sand-skiers makes the identification of the word 'ski'
and snow-skiing 'nearly unique'. But is this actually a requirement?

42.

The Applicant insists that it is, asserting that 'ICANN designed the community objection … "toprevent the misappropriation of a string that uniquely or nearly uniquely identifies a wellestablished and closely connected group of people"'. (Sur-Reply at p.2). The Applicant saysthat quote comes from a 'commentary' on the requirements, to which it provides a link. The
clear impression given is that ICANN has said that an objector on behalf of a community mustshow that the applied-for gTLD 'uniquely or nearly uniquely identifies' the community
represented by the objector.

However, upon inspection of the document from which theApplicant has taken the quote (ICANN's 'New gTLD Program - Summary Report and Analysisof Public Comment – Applicant Guidebook Excerpts and Explanatory Memoranda'), it
transpires that the words quoted are not the words of ICANN, but rather the words of a privatecompany called eNOM, asserting (as part of its comments on the July 2009 draft of the
Guidebook) what it contends the objective of the Community Objection is (or should be). In its
own 'Commentary and Proposed Position' on the comments by eNOM and other stakeholders,
ICANN did not endorse the eNOM comment, instead simply saying that 'the established criteria'(i.e., those set out in the draft Guidebook) should be used. And eNOM’s proposed gloss on theCommunity Objection criteria did not make its way into the final version of the Guidebook
issued in June 2012. As a result, the Expert considers this submission by the Applicant to be
extremely misleading. Contriving an argument to support a particular position (viz., that therequired 'strong association' between the gTLD and the community represented by the Objector
does not exist) creates a strong inference that there is no valid argument for that position, andseriously undermines the Applicant's general credibility.
43.

As a result, the Expert rejects the suggestion that to satisfy this third substantive requirement of'strong association' the Objector must show that the <.SKI> gTLD 'uniquely or nearly uniquely
identifies' the Ski community. The fact that a minority of people might think, when they hear the16word 'ski', not of snow-skiing but of water-skiing or (even) sand-skiing, does not change the factthat the word 'ski' is 'strongly associated' with the (snow) Ski community.
D.4

44.

The Objector must prove that 'the application creates a likelihood of material
detriment to the rights or legitimate interests of a significant portion of thecommunity to which the string may be explicitly or implicitly targeted’

The Expert does not consider that the reference in this fourth and final substantive requirement
to ‘the community to which the string may be explicitly or implicitly targeted’ adds anythingmaterial to the already-discussed requirement of proof of ‘a strong association between theapplied-for gTLD string and the community represented by the objector’. (See section D.3
above). Since the Expert has already found that that requirement is satisfied, it follows that thispart of the fourth substantive requirement is also satisfied.

45.

That leaves the question of whether the Applicant's proposed operation of the string ‘creates alikelihood of material detriment to the rights or legitimate interests of a significant portion of’ theSki community. The Guidebook provides the following guidance on this issue (at page 3-24):‘An allegation of detriment that consists only of the applicant being delegated the string insteadof the objector will not be sufficient for a finding of material detriment. Factors that could be
used by a panel in making this determination include but are not limited to: nature and extent
of damage to the reputation of the community represented by the objector that would result
from the applicant's operation of the applied-for gTLD string; evidence that the applicant is not
acting or does not intend to act in accordance with the interests of the community or of users
more widely, including evidence that the applicant has not proposed or does not intend to
institute effective security protection for user interests; interference with the core activities of thecommunity that would result from the applicant’s operation of the applied-for gTLD string;dependence of the community on the DNS [domain name system] for its core activities; natureand extent of concrete or economic damage to the community represented by the objector thatwould result from the applicant's operation of the applied-for gTLD; and level of certainty that
alleged detrimental outcomes would occur’. Again, the Objector does not have to establish thateach of these factors is present in order to sustain its burden. It can invoke some of thesefactors (and/or other factors that it can show are relevant), and those factors are then balanced
against any countervailing factors established by the Applicant. However, since the Objector
has the burden on this point as well, the factors it invokes must outweigh any factors invokedby the Applicant, or else the Objection must be rejected.

46.

The Objector's submissions on this point (Objection pp. 11-15 and related Annexes) may besummarised as follows:
46.1

The 'internet is already playing a very strong, and ever increasing role, within the ski
community'. (Numerous examples are given at page 10 of the Objection). And the
Objector'hasdeveloped

core

principles

17

and

activities[includingorganising

competitions and commercialising those competitions, as well as promulgating antiracism, anti-bullying, and anti-doping values and fighting illegal or undesirable betting]… that are key factors in communicating with all categories of skiers and potential
skiers, from young newcomers to enthusiastic skiers of all ages'. A policy (such as the
Applicant intends to follow) of unrestricted access to the <.SKI> gTLD 'without sportsspecific registry policies and oversight' would 'allow many web sites, based on words
and activities that are in fundamental contradiction with and in opposition to the core
principles and values of the FIS, ski sport and the ski community at large, to benefit
from, deteriorate and/or abuse the reputation of skiing and ski sport and the positive
image projected by the FIS'. Because the use of the <.SKI> TDL gives an 'aura ofofficial sanction', visitors to <.SKI> websites may perceive, through the use of that TLD,
that the content of those sites is linked to, and even sanctioned by, the Objector and its
member governing bodies of the Ski community, so interfering with and undermining
the Objector's efforts to promote and develop ski sport through the promulgation ofstrong values that emphasise honesty, fairness and integrity of competition. Anotherwell-established type of abuse is the misuse of sports themes for pornography (e.g.,
www.porn.ski).

The Objector asserts that the proliferation of such activities 'will

significantly damage the image and reputation of the ski community, with related
concrete and economic damages in terms of a decrease in ski activity and skier visits'.
46.2

The Objector asserts that the Applicant's intended 'open access' operation of the gTLD
would also permit abuse of the commercial assets and goodwill of the Ski community
through activities such as cybersquatting, brand jacking, and registration of names ofclubs, federations, events and athletes as a means of ambush of them and theircommercial activities, thereby allowing unscrupulous users to benefit withoutauthorisation from the goodwill that the Objector and its members (and star individualskiers competing in their events) have built up in their names, images, and events. For
example, the Applicant is 'unwilling to ensure that second level domains related to FIS
member National Associations and to FIS Alpine Ski World Cup events, and especiallythe "city + year" marks associated with each event, will be protected'.

46.3

The Objector asserts that it and its members 'would have considerable difficulties ingetting such content removed because of a lack of legal instruments and practicalaccess'. It is therefore concerned about many further opportunities for abuse (indeed,more targeted abuse) being created through the free availability of the <.SKI> gTLD. It
asserts that the only way to prevent abuse of the kind it has identified would be tosubmit the gTLD operator to ‘a ski community-specific acceptable use policy', and to
make it accountable to the Ski community for compliance with that policy. Otherwise,for example, an unaccountable operator of a <.SKI> gTLD 'will neither be willing nor
able to monitor its name space with respect to doping-abetting content' and is therefore

18

'certain to encumber community efforts against doping'. It notes that these elements
are absent from the Applicant's plans for operation of the gTLD <.SKI>.
46.4

The Objector asserts that, as a result of the above, the Ski community will suffer
substantial monetary losses and costs, but also reputational damage, and damage tothe values and image of ski sport.

47.

The Applicant responds as follows:
47.1

The Applicant acknowledges the risks of cyber-squatting and the other forms of abuse
identified by the Objector, but asserts that the Objector 'offers no evidence that
Applicant's proposed string would create any greater or different harm to the"community" than it appears to experience under the existing regime of .com and othergenerics. As such, objector does not prove that an open <.ski> gTLD itself would
cause any such harm, since, by Objector's own admission, the issues of which it warns
already exist'. (Response p.11).

47.2

The Applicant openly acknowledges and indeed seeks to make a virtue out of the factthat it 'will not limit eligibility or otherwise exclude legitimate registrants in second level
names'. (Application p.12). However, the Applicant disagrees with the Objector that
this will cause material detriment to the Ski community. In particular, it asserts it will put
in place registration policies that include the 14 mechanisms required by ICANN for the
new gTLDs, but also 'eight additional measures, including those to address the exact
types of concerns raised by Objector' (Response p.11), to 'protect Internet users andrights-holders from fraud and abuse'. (Ibid. p.12).

47.3

The Applicant acknowledges these policies will not prevent the Ski community losing
domain names corresponding to non-trademark protected clubs, federations, eventsand athletes to speculators, but contends that this is a 'reasonable consequence rather
than a detriment', because 'a group without trademark status or comparable protection
on existing gTLDs should not enjoy trade-mark level protection on as against any new
gTLD'. (Response p.12). It argues that imposing registration restrictions as suggestedby the Objector would 'stifle growth, free speech, legitimate activity and consumer
choice', which would be contrary to the objectives of ICANN. (Response p.12).

47.4

The Applicant asserts that the Objector has not provided any competent evidence tosupport its assertion that the harm it is concerned about will occur, or to support its
purposed quantification of the monetary damage it alleges will result. (Response p.13).

48.

The Expert finds as follows:
48.1

The Applicant does not dispute that use of current TLDs includes abusive use that
unfairly prejudices the reputational and commercial interests of the Ski community. Its
19

argument that there is no evidence that such abuse will be ‘any greater or different’ if
the Applicant is delegated the <.SKI> gTLD (and so that delegation cannot be
considered the cause of such abuse) does not seem to the Expert to be a very
attractive argument. Nor does it find any support in the Guidebook. The test is whether
the Objector can show that detriment is likely to result to the rights or legitimate
interests of the community it invokes from the Applicant's proposed use of the new
gTLD. There is nothing in the Guidebook or elsewhere to suggest that detriment of thetype that that community already suffers from abuse of the existing TLDs should bedisregarded for these purposes.

And in any event, the operation of the new TLD<.SKI> would at the very least create many more opportunities for such abuse (and aconcomitantly increased burden on the Ski community to identify and try to take action
against such abuse). And if the Objector's concern that the new gTLD risks giving newsites and their content an aura of official sanction is reasonable (as the Expert finds that
it is: see paragraph 48.3 below), then not only are there more opportunities for abuse,
but the risk of detriment is greater from those further opportunities. As a result, theExpert considers that this factor tips in favour of the Objector.
48.2

Furthermore, the Applicant's assertion that permitting speculators to register domainnames corresponding to non-trademark protected individuals, events and organisations
is not a detriment but a ‘reasonable consequence’ of the freedoms contemplated by the
new gTLD programme seems to the Expert to boil down to the following question:
assuming that such conduct does not infringe a formal legal ‘right’ of those members of
the Ski community, does the Ski community nevertheless have a ‘legitimate interest’ inpreventing speculators creating and exploiting an unauthorised association between
their websites and the individuals, events and organisations in question for their own
commercial and other purposes, and to the detriment of those individuals, events andorganisations? The Expert sees no reason why this should not be recognised as a‘legitimate interest’ in this context. The Applicant’s assertion that doing so would 'stifle
growth, free speech, legitimate activity and consumer choice' seems to the Expert tobeg the question. The purpose of the new gTLD programme is indeed stated to be topromote free speech, competition and innovation.

However, the creation of the‘Community Objection’ mechanism reflects a consensus that those are not absolutevalues, but instead can and should be subject to proportionate restrictions where
necessary to avoid detriment to the rights and legitimate interests of a community. Thebalance is struck by putting the burden of proof on the party making the objection on
behalf of the community to satisfy each of the elements of the Community Objection.
Therefore, it adds nothing to say that the Objector’s stance would 'stifle growth, freespeech, legitimate activity and consumer choice'. The only question is whether the
Objector has shown the required likelihood of detriment to the rights or legitimate
interests of the Ski community. If so, then any hindrance of free speech, etc. that
follows is necessarily justified, and so not a reason to reject the Objection.
20

48.3

The Expert also considers that the Ski community has a ‘legitimate interest’ inpromoting the values, image and integrity of ski sport, and in ensuring the public has
confidence in its readiness, willingness and ability to do so. Indeed, unless sport is not
only ‘straight’ but seen to be ‘straight’, then the public’s confidence in uncertainty ofoutcome – the very essence of sport -- will be compromised, which would be nothing
short of disastrous for the Ski community. Therefore, if the Objector is correct that useof the <.SKI> gTLD will give the related websites an 'aura of official sanction', theExpert would agree that a likelihood of detriment to the legitimate interests of the Ski
community has been established. So is the Objector's fear well-founded? The Expert
has already found that there is a ‘strong association’ between the <.SKI> gTLD and theSki community, in that the word will call to mind for most people the ski sports
organised, promoted and developed by the Objector and its members. (See paragraph
39 above). That does not automatically mean that the public would assume that sites(or content on sites) with that string in their domain name would necessarily be ‘official’or ‘sanctioned’ content, but it is clearly reasonable to think there is a risk that theymight. As a result, this is also a factor that tilts in favour of finding the detrimentrequirement met.

48.4

The Applicant does not make good its assertion that its intended registration policies
will 'address the exact type of concerns raised by Objector'. In fact, the ‘fraud andabuse’ that the Applicant seeks to prevent in its policies appears to be confined toinfringements of intellectual property rights and ‘fraudulent activity’ such as distributionof malware, phishing, DNS hijacking or poisoning, and spam. (Application p.52). As
noted above, the Applicant openly says it would not prevent ambush marketing throughunauthorised use of famous names (because it does not regard that as improper).
(See paragraph 47.3 above). Similarly, there is nothing in the Applicant’s policies thatwould prevent users from operating their sites and/or putting content on them in amanner that falsely suggested an association with or endorsement by the Ski
community.

The Expert therefore accepts the Objector’s submission that the

Applicant's policies ‘give no protection against terms in clear contradiction with thecores [sic] values of ski and sports (doping, illicit gambling, racism …)'. It is also
relevant in this regard that ICANN has said that '[w]hile ICANN will enforce obligations
undertaken by the registry operator in its agreement with ICANN, it is not ICANN's duty
to supervise the operation of new gTLDs and to ensure that communities are not hurt
by those gTLDs'. (ICANN's 'New gTLD Program - Summary Report and Analysis of
Public Comment – Applicant Guidebook Excerpts and Explanatory Memoranda', p.21).
48.5

The Expert agrees with the Applicant that the Objector’s assessment of economic andother losses (including opportunity costs) is not well-evidenced.

In particular, theObjector has not been able to come up with a meaningful estimate of the economic
damage it would suffer if the Application were granted. That is not surprising, however,21

given the nature of the potential detriment identified by the Objector. As the Objectorsays, 'many affected values cannot be measured in terms of money'. (Objection p.15).
Furthermore, and in any event, the detriment test under section 3.5.4 of the Guidebook
is that of ‘a likelihood of material detriment’, not an actual, quantified damage. As aresult, the Expert does not regard this as a sufficiently strong negative factor tooutweigh the factors in the Objector's favour on this point.
49.

Balancing all of these factors, the Expert considers that the factors the Objector has
established showing detriment to the rights and legitimate interests of the Ski community
outweigh the contrary factors cited by the Applicant, and therefore the Objector has met its
burden of proof on this issue as well.

E.

DETERMINATION50.

For the reasons set out above and in accordance with Article 21(d) of the Procedure, the Expert
renders the following Expert Determination:i.

The Objection is successful and therefore

the Objector is the prevailingparty.
ii.

The Centre shall refund the Objector’s advance payment of costs to the
Objector in accordance with Article 14(e) of the Procedure.

………………………………………………………………..
Jonathan Taylor, Expert

22

Dated: 21 January 2014