THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/485/ICANN/102

REPUBLICAN NATIONAL COMMITTEE
(USA)
vs/
UNITED TLD HOLDCO LTD.
(CAYMAN ISLANDS)

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.

INTERNATIONAL CENTRE FOR EXPERTISE OF THE INTERNATIONALCHAMBER OF COMMERCE
PARIS, FRANCE
Case No. EXP/485/ICANN/102

IN THE PROCEEDINGS BETWEENREPUBLICAN NATIONAL COMMITTEE (USA)Objectorv
UNITED TLD HOLDCO LTD. (CAYMAN ISLANDS)
Applicant

EXPERT DETERMINATION

Expert Panel composed of Professor Brigitte Stern

Date: 7 January 2014

TABLE OF CONTENTSTABLE OF ABBREVIATIONS

3

I. INTRODUCTION

5

A. THE DISPUTE
B. THE PARTIES
1. THE OBJECTOR
2. THE APPLICANT

5
5
5
5

II. THE PROCEDURE

6

A.
B.

PROCEDURAL HISTORYPROCEDURAL ISSUES

6
7

III. POSITIONS OF THE PARTIES

8

THE OBJECTOR’S POSITION
THE APPLICANT’S POSITION

8
10

A.
B.

IV. THE EXPERT’S ANALYSIS

10

A.
1.
2.
3.
4.
B.
1.
a.

A CLARIFICATION OF THE CONCEPTS TO BE USED11
THE DISTINCTION BETWEEN THE STANDING AND THE MERITS LEVELS
11
THE CRITERIA FOR ESTABLISHING THE REQUIREMENTS COMMON TO THE TWO LEVELS 13
THE SCOPE OF THE “SUBSTANTIAL” OPPOSITION TO THE GTLD
14
A SUMMARY OF THE EXPERT’S APPROACH
16
STANDING TO OBJECT
17
FIRST: IS A CLEARLY DELINEATED COMMUNITY NAMED BY THE OBJECTOR?
18
Which community has been named by the Objector: the Republican Party or theRepublican Community?
18b. Is the Republican Community a clearly delineated community?
23c. Is the US Republican Party a clearly delineated community?
26
2. SECOND: IS THE OBJECTOR AN ESTABLISHED INSTITUTION?
28
3. THIRD: IS THE OBJECTOR ASSOCIATED WITH A CLEARLY DELINEATED COMMUNITY?
28
4. CONCLUSION
30
C. MERITS OF THE OBJECTION
31
1. FIRST: IS THERE SUBSTANTIAL OPPOSITION TO THE APPLIED FOR GTLD STRING ?
32
a. Is there a substantial opposition among the community the Objector has identified itself
as representing?
32
b. Is there a substantial opposition from a significant portion of the community to which thestring is targeted?
33
2. SECOND: IS THE APPLIED FOR GTLD STRING STRONGLY ASSOCIATED WITH THE
COMMUNITY REPRESENTED BY THE OBJECTOR?
34
3. THIRD: DOES THE APPLICATION CREATE A LIKELIHOOD OF MATERIAL DETRIMENT TO
THE COMMUNITY?
36
4. CONCLUSION
39
V. DETERMINATION

39

2

TABLE OF ABBREVIATIONS

Abbreviation

Name“Appendix III”

Appendix III of the ICC Expertise Rules, Scheduleof expertise costs for proceedings under the New
gTLD Dispute Resolution Procedure“Applicant”

The Applicant to a new gTLD and Respondent in
the Community Objection proceedings“Application”

The Applicant’s application to the new gTLD“Centre”

The Centre for Expertise of the International
Chamber of Commerce“Determination”

The present Expert Determination rendered by theExpert in these Community Objection proceedings“Guidebook”

The gTLD Applicant Guidebook“Guidebook/3”

Module 3 to the gTLD Applicant Guidebook(version 4 June 2012)“GOP”

Grand Old Party“gTLD”

Generic top-level domain name

“ICC Practice Note”

ICC Practice Note on the Administration of Cases“ICANN”

Internet Corporation for Assigned Names andNumbers“Objection”

The Objector’s objection against the registration of a
new gTLD, including the ‘Objection Form to becompleted by the Objector’ and a substantive
Memorial of 18 pages annexed to it as a separate
document“Objector”

The Objector to the registration of a new gTLD and
Claimant in the Community Objection proceedings“Parties”

The Objector and the Applicant to the Community
Objection proceedings

3

“Procedure”

Attachment to Module 3 of the gTLD Applicant
Guidebook: New gTLD Dispute Resolution
Procedure“Related Entity”

The party related to the Objector in the Community
Objection proceedings“Response”

The Applicant’s response to the Objection in the‘Response Form to be completed by Applicant’including substantive developments of 10 pages“RNC”

The Republican National Committee“RSLC”The Republican State Leadership Committee, which
joins the Objection as a related entity“Rules”

Rules for Expertise of the ICC“United TLD”

United TLD Holdco Ltd.

4

I.

INTRODUCTION

A. THE DISPUTE

1. This dispute is a Community Objection filed by the Republican National
Committee against the registration by United TLD Holdco Ltd. of the new generic
top-level domain name .republican.

B. THE PARTIES

1. The Objector
2. The Objector to the new generic top-level domain name (“gTLD”) .republican and
Claimant in the Community Objection proceedings (the “Objector”) is theRepublican National Committee (“RNC”). It has its registered office at 310 1st
Street SE, Washington, DC 20003, United States of America.
3. The Objector is represented in these proceedings by David Einhorn, Esq. of Baker& Hostetler LLP, 45 Rockefeller Plaza, New York, NY 10111, United States ofAmerica (deinhorn@bakerlaw.com).
4. The Republican State Leadership Committee (“RSLC”) joins the Objection as arelated entity to the Objector (the “Related Entity”).1 The Related Entity has its
registered office at 1201 F Street NW, Suite 675, Washington, DC 20004, UnitedStates of America (cjankowski@rslc.org).

2. The Applicant
5. The Applicant for the new gTLD .republican and Respondent in the Community
Objection proceedings (the “Applicant”) is the company United TLD Holdco Ltd.
(“United TLD”). It has its registered office at Ugland House, South Church Street,George Town, KY1-1104, Cayman Islands (hello@unitedtld.com).
6. The Applicant is represented in these proceedings by Ian C. Ballon, Wendy M.
Mantell and Justin A. Barton of Greenberg Traurig LLP, 1840 Century Park E,
Suite 1900, Los Angeles, CA 90067, United States of America.
(ballon@gtlaw.com, mantellw@gtlaw.com, bartonju@gtlaw.com).
7. The Objector and the Applicant are herein together collectively referred to as the“Parties.” The Related Entity is referred to separately.
1

Objection Form of 13 March 2013, p. 3: “Other Related Entities” Objection, p. 2.

5

II.

THE PROCEDURE

A. PROCEDURAL HISTORY

8. On 13 June 2012, the ICANN website published the Applicant’s application for theregistration of the new gTLD .republican (the “Application”). ICANN’s
publication of the Application infers that it was duly filed prior to 12 April 2012, as
required at Section 1.1.1 of the gTLD Applicant Guidebook (the “Guidebook”).2
The status of the Application is available on the ICANN website.3
9. The Objector filed a Community Objection against the Applicant’s registration of.republican as a new gTLD on 13 March 2013 (the “Objection”). The Objection
was submitted to the ICC Centre for Expertise (the “Centre”) pursuant to Article
3(d) of the Attachment to Module 3 of the gTLD Applicant Guidebook (the“Procedure”). The date of filing corresponds to the deadline set by ICANN on its
website.4 The Objector duly paid the EUR 5,000 filing fee to the Centre as required
by Article 1(2) of Appendix III of the ICC Expertise Rules (“Appendix III”).5
10. Satisfied with the administrative review conducted according to Article 9 of theProcedure, the Centre registered the Objection.6 After the Centre’s registration of
the Objection, ICANN published the Objector’s Community Objection on its
website on 12 April 2013. This publication complies with Article 10(a) of theProcedure.7
11. On 15 May 2013, the Applicant submitted its Response to the Objector’sCommunity Objection against the registration of the string .republican. The Centre
performed its administrative review of the Response and found it to be incompliance with Article 11 of the Procedure and with the Rules for Expertise of the
ICC (the “Rules”).8 Indeed, the Applicant duly filed its Response within the 30days time limit after the Centre’s notification according to Article 11(b) of theProcedure; and the filing fee of EUR 5,000 was paid by the Applicant as required
by Article 1(3) of Appendix III.9
2

Guidebook, Section 1.1.1, pp. 1-3.

3

At: https://gtldresult.icann.org/application-result/applicationstatus/applicationdetails/1128.

4

At: http://newgtlds.icann.org/en/program-status/odr.

5

Cf. Centre’s email to the Objector dated 18 March 2013 and Objector’s Invoice dated 7 March 2013
filed with the Objection.
6

Cf. Centre’s email to the Objector dated 5 April 2013.

7

Cf. Centre’s email to the Parties dated 15 April 2013.

8

Cf. Centre’s email to the Parties dated 27 May 2013.

9

Cf. Payment Certificate dated 15 May 2013 and attached to the Response.

612. On 14 June 2013, the Chairman of the Standing Committee of the Centre appointed
Professor Brigitte Stern as Expert in the Community Objection proceedings,
pursuant to Article 3(3) of Appendix I to the Rules. On 19 June 2013, the Parties
were informed of this nomination. 10 Professor Stern’s address is 7 rue Pierre
Nicole, 75005 Paris, France (stern@univ-paris1.fr). The Expert is the sole memberof the Panel in accordance with Article 13(b)(iv) of the Procedure.
13. In its letter dated 2 August 2013 and further to the payment in full of the estimatedcosts by the Parties, the Centre confirmed full constitution of the Expert Panel andaccordingly transferred the file to Professor Stern. Article 21(a) of the Procedureprovides that the Panel shall make “reasonable efforts to ensure that the Expert
Determination is rendered within forty-five (45) days of the constitution of the
Panel.” Further, the same provision provides that in “specific circumstances,” abrief extension may be granted.
14. Considering the novelty of the exercise and what she perceived as someambiguities in the Module 3 to the gTLD Applicant Guidebook (“Guidebook/3”),
the Expert wanted to duly clarify the criteria to be applied and requested therefore ashort extension. By e-mail of 9 September 2013, the Centre wrote to the Expert
stating: “Taking into account specifics of the current case, the extension of the time
limit until 30 September 2013 is acceptable to the Centre.” The Expert duly
informed the Parties of this extension of time granted by the Centre. The present
Expert Determination (the “Determination”) was submitted for scrutiny to theCentre within the extended period of time in accordance with Article 21(a) and (b)of the Procedure.
15. The Centre fixed the amount of the initial deposit at EUR 107,200 in order to cover
the administrative costs of the Centre and the fees and expenses of the Expert. Each
Party duly paid these costs in full. This complies with Article 14(3) of the Rules,
Article 14 of the Procedure, and Appendix III. Due payment was confirmed by theCentre.11

B. PROCEDURAL ISSUES

16. These proceedings are governed by the Rules and their Appendix III, supplemented
by the ICC Practice Note on the Administration of Cases (“ICC Practice Note”)
under the Guidebook, including the Guidebook/3 and the Procedure.


Article 1(d) of the Procedure provides that by applying for a new gTLD,
an applicant accepts the applicability of this Procedure and the10

Cf. Centre’s email to the Parties dated 19 June 2013.

11

Cf. Centre’s email to the Parties dated 2 August 2013.

7

applicable rules of the dispute resolution service provider. This equallyapplies to an objector when filing an Objection. The parties can only
derogate from the Procedure and the Rules with the approval of ICANN
or of the relevant dispute resolution service provider.


Point 8 of the ICC Practice Note states that by accepting the process as
defined in Article 1(d) of the Procedure, parties are deemed to haveagreed that the expert determination shall be binding upon them. Article
12(3) of the Rules confirms this.



According to Article 23(b) of the Procedure, the Procedure applies in its
version of 11 January 2012. This is indeed the version that was in effecton the day when the relevant application for a new gTLD was
submitted.

Article 4(c) of the Procedure provides that the Procedure shall prevail inthe event of any discrepancy between the Procedure and the Rules.

17. As provided by Article 4(d) of the Procedure, the place of the proceedings is thelocation of the Dispute Resolution Service Provider, i.e. the Centre, located in
Paris, France.
18. Pursuant to Article 5(a) of the Procedure, the proceedings have been duly
conducted in English. It bears mentioning that the requirement for the Expert
Mission set out in Article 12(1) of the Rules has been waived in accordance with
Point 6 of the ICC Practice Note.
19. In accordance with Article 6(a) of the Procedure, all communications by theParties, the Expert and the Centre have been submitted electronically. The Expert
did not require additional submissions or production of evidence by the Parties, andthe proceedings were carried out without the holding of a hearing. None of theParties has requested that a hearing be held.

III.

POSITIONS OF THE PARTIES

20. The Expert will present here a summary of the Parties’ positions, while moredetailed arguments of the Parties will be referred to in the course of the reasoning.

A. THE OBJECTOR’S POSITION

21. The Community Objection presented by the Objector is based on its allegation that
there is substantial opposition to the gTLD application from a significant portion of
the community to which the gTLD string may be explicitly or implicitly targeted.

822. In the Objection Form, the Objector describes the community it represents in thefollowing manner: “The Republican National Committee (“RNC”), as the officialorganization representing the United States Republican Party, is an establishedinstitution representing the interests of the clearly delineated Republican
Community …”12 The Expert will indicate below that the presentation is both more
complex and less clear in the substantive part developing the Objection Form andannexed to it.13
23. As to the remedies requested in the Objection Form, the Objector requests theExpert to mandate denial of the Applicant’s registration of .republican as a new
gTLD, and additionally requests that the ICC refund the portion of the Expert fees
borne by it.14
24. The Objector alleges that it has standing to object to the registration of .republican
since it is an established institution representing the interests of the clearlydelineated Republican Community. It contends that the same test should apply to
the Related Entity. First, the Objector describes itself as an established institutionthat has been globally recognized as the official representative of the Republican
Party for over 150 years. Second, the Objector argues that its primary purpose is toorganize and pursue the Republican Agenda on behalf of the Republican
Community. According to the Objector, the Republican Community comprises
individuals and entities that uniformly identify with Republican ideals.15 Third, theObjector considers that it meets its burden of proving its standing to object.
25. The Objector further argues that its Objection meets the required ICANN standards
to be sustained. The Objection is reported as duly demonstrating substantial
opposition among a significant portion of the Republican Community to the.republican string’s registration. To begin with, the Objector refers to the standing
to object test to support the existence of a clearly delineated Republican
Community. Further, it contends that the Republican Community collectively andstrongly opposes the registration of the .republican gTLD and that the Objection
represents this hostility. Moreover, the Objector finds the word republican used in
the applied-for gTLD to be associated with the Republican Community both
domestically and internationally. Eventually, the Objector argues that theregistration of this string by the Applicant would be of material detriment to theentire Republican Community, especially since it would create confusion among
the public.

12

Objection Form, p. 4.

13This is in the form of a Memorial of 18 pages.

14

Objection Form, p. 5.

15

Objection, p. 7.

9B. THE APPLICANT’S POSITION

26. The Applicant requests the Expert to reject the Community Objection on the
ground that the Objector does not have a community to represent. It argues that the
Objection would deprive US and worldwide republicans of benefiting from an
open .republican gTLD.16
27. The Applicant contends that the Objector does not have standing in theseproceedings, as it does not serve the benefits of all republicans in any given
community. According to the Applicant, the Objector’s assertion that theRepublican Community refers to the same group of individuals and organizations
disregards the geographic and ideological diversity of republicans throughout the
globe. The Applicant equally rejects the existence of a single Republican Agenda
both internationally and in the US. Furthermore, the Applicant alleges that the
Objector’s evidence does not support its standing to object.
28. Even if the Objector had standing, the Applicant argues that the Objection fails tomeet the ICANN standards. Firstly, the Applicant rejects the Objector’s assertion
that there exists a clearly delineated Republican Community. Secondly, theApplicant contends that its Application is not subject to substantial opposition.
Thirdly, the Applicant considers that the community represented by the Objector isin fact associated with the .gop gTLD. Fourthly, it sustains that instead of causingmaterial detriment to the rights or legitimate interests of republicans, theregistration of .republican would permit all individuals associated with republican
ideals to use the gTLD and would promote ICANN’s goals.

IV.

THE EXPERT’S ANALYSIS

29. The test to determine whether a Community Objection has to be sustained is
twofold. Firstly, the Objector has to demonstrate its standing to object. Secondly,
the Objection must fulfill the ICANN standards allowing the Expert to sustain an
Objection on the merits.
30. As mentioned in paragraph 14 of this Determination, the Expert considers that theconcepts to be used as well as the articulation between the different steps of theanalysis to be performed by the panels need to be clarified. Faced with what she
perceived as some ambiguities in the texts to be applied, the Expert has tried tohave a logical and coherent approach to the task entrusted to her.

16

Response, p. 13.

10

A. A CLARIFICATION OF THE CONCEPTS TO BE USED

1. The distinction between the standing and the merits levels
31. The Expert was somewhat intrigued in reading the Guidebook/3 by the fact that
two criteria seemed to be common to the analysis of the standing to object and theanalysis of the merits.
32. Indeed, Section 3.2.2.4 of the Guidebook/3,17 describing the requirements for an
Objector to have standing to object, reads:
Established institutions associated with clearly delineatedcommunities are eligible to file a community objection. The
community named by the objector must be a community strongly
associated with the applied-for gTLD string in the application that is
the subject of the objection. (Emphasis added)
33. Thereafter,18 among the four tests to be fulfilled by an Objector in order to succeedon the merits, two similar requirements are indicated:
The community invoked by the objector is a clearly delineatedcommunity; and…
There is a strong association between the community invoked andthe applied-for gTLD string … (Emphasis added)
34. Faced with the mention of these same requirements at the two stages of the analysis
any expert has to perform, the Expert had to interpret the Guidebook/3 in order togive sense to these requirements.
35. In order to perform such interpretation, the Expert relied on the principle of “effet
utile” generally accepted in international law. The principle of effet utile requires
international courts and tribunals to interpret international rules “so as to give them
their fullest weight and effect consistent with the normal sense of the words andwith other parts of the text and in such a way that a reason and a meaning can be
attributed to every part of the text.”19
36. This principle of interpretation is applied in many international domains, forexample by the International Court of Justice, 20 by the Appellate Body of the17

Guidebook/3, Section 3.2.2.4, pp. 3-7.

18

Guidebook/3, Section 3.5.4, pp. 3-23.

19

Richard Gardiner, TREATY INTERPRETATION, New York, Oxford U. Press, 2008, p. 149

20

I.C.J., Judgment of 9 April 1949, Corfou Channel (United Kingdom of Great Britain and Northern
Ireland v. Albania), Rec., 1949, p. 24; I.C.J., Advisory Opinion of 21 June 1971, Legal Consequences
for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), p. 35, para. 66; I.C.J., Judgment of 20 December 1988, Borderand Transborder Armed Actions (Nicaragua v. Honduras), Rep. 1988, p. 89, para. 46; I.C.J., Judgmentof 3 February 1994, Territorial Dispute (Libyan Arab Jamahiriya/Chad), Rep. 1994, p. 23; I.C.J.,

11

WTO,21 by investment arbitration tribunals and other arbitral tribunals,22 and theExpert sees no reason not to apply it in disputes concerning domain names.
37. To illustrate how the principle has been applied, the Expert refers to the decisionof the ICSID tribunal in AAPL, which explained:
Nothing is better settled, as a canon of interpretation in all systems oflaw than that a clause must be so interpreted as to give it a meaningrather than so as to deprive it of meaning.23
38. It has since then been confirmed in a great number of investment awards, whichrefer to the… cardinal rule of the interpretation of treaties that each and every
operative clause of a treaty is to be interpreted as meaningful rather thanmeaningless. It is equally well established in the jurisprudence ofinternational law, particularly that of the Permanent Court ofInternational Justice and the International Court of Justice, that treaties,
and hence their clauses, are to be interpreted so as to render themeffective rather than ineffective.24
39. It stems from this jurisprudence constante that an interpretation which deprives aword or a phrase of any usefulness “runs counter to the general principle ofeffectiveness (effet utile) and for that reason also ought to be set aside.”25
40. In compliance with this firmly settled rule of interpretation, the provisions inquestion must be interpreted so that all and every elements the Guidebook/3
contains are meaningful. It appears to the Expert that the best explanation for thisdouble mention of two criteria at the standing level and at the merits level is thatthe rules apply both to Community Objections raised by institutions whose

Judgment of 5 December 2011, Application of the Interim Accord of 13 September 1995 (the former
Yugoslav Republic of Macedonia v. Greece), Rep. 2011, p. 673, para. 92
21

WTO, Canada – Measures affecting the importation of milk and the exportation of dairy products,
Report of the Appellate body of 13 October 1999 (WT/DS103-DS113/AB/R), para. 133.
22

Award of the UK/USA Arbitral Tribunal of 1926 in the Cayuga Indians case, Repertory, vol. II, para.
2036, pp. 35-36; Arbitral Award of 17 July 1986, Filleting within the Gulf of St. Lawrence between
Canada and France, R.I.A.A., vol. XIX, p. 243, para. 20; Arbitral Award of 21 October 1994, Lagunadel desierto, R.G.D.I.P. 1996, p. 585.
23

Asian Agricultural Products Ltd. (AAPL) v. Republic of Sri Lanka, ICSID (ARB/87/3), Award of 27
June 1990, para. 40.
24

Arbitral Award of 19 August 2005, Eureko B.V. v. Republic of Poland, para. 248. See also e.g.: Noble
Ventures v. Romania, ICSID, (ARB/01/11), Award of 12 October 2005, para. 50, or Pan American
Energy LLC and BP Argentina Exploration Co. v. Argentina, ICSID (ARB/03/13), Decision on
Preliminary Objections of 27 July, 2006, para. 132; Cemex Caracas Investments B.V. and Cemex
Caracas II Investments B.V. v. Bolivarian Republic of Venezuela, ICSID (ARB/08/15), Decision on
Jurisdiction of 30 December 2010, paras. 104-114; Tidewater Inc. and others v. The Bolivarian Republicof Venezuela, ICSID (ARB/10/5), Decision on Jurisdiction of 8 February 2013, para. 134.
25

Salini Costruttori S.p.A. and Italstrade S.p.A. v. Hashemite Kingdom of Jordan, ICSID (ARB/02/13),
Decision on Jurisdiction of 9 November 2004, paras. 94-95.

12

standing to object has to be verified and to the Independent Objector who
automatically has standing. As the existence of a clearly delineated community anda strong association between the community invoked and the applied-for gTLD
string are fundamental criteria, at the root of any possible objection, it seems
efficient to have them verified as soon as possible, in other words, at the level ofstanding for the institutions and at the level of merits for the Independent Objector.
This implies that if and when it is verified at the standing level, the Expert does notneed to proceed to the same verification at the merits level.

2. The criteria for establishing the requirements common to the two levels
41. The solution just outlined is however not entirely applicable, as the criteria for thedetermination of the existence of these two requirements are only elaborated on in
Section 3.5.4 of the Guidebook/3. Therefore, further clarification is needed
concerning the process of decision of the Expert.
42. A first clarification seems to be needed concerning precisely the existence of aclearly delineated community, which is a fundamental requirement. In theconditions concerning the standing to object, the focus is on the existence of anestablished institution and on the relationship of that institution with a clearlydelineated community, some possible factors for establishing this relationshipbeing enunciated.26
43. However, the criteria for finding the existence of a clearly delineated community
are only to be found in the Section concerning the merits. The Expert, consideringthat the existence of a clearly delineated community is the absolute first step in her
analysis, will therefore examine this question at the outset – when examining theexistence of a standing to object – and take inspiration for the finding of such
community from the criteria enumerated in Section 3.5.4.
44. Furthermore, although the general heading of the Section 3.2.2.4 relating to thestanding to object refers to the necessity of a strong association of the community
with the applied-for string,27 the mention of this criterion is not reiterated in thesubsequent parts of the Section, while it is clearly mentioned and explicated in
Section 3.5.4 concerning the merits and setting the different standards to be
fulfilled in order to succeed on the merits.28 For this reason, contrary to the analysis
relating to the clearly delineated community, which the Expert does not consider tobe fit to be postponed to the merits phase, the Expert will suspend her analysis of
the existence of a strong association of the community with the applied-for string
until the merits phase.

26

Guidebook/3, Section 3.2.2.4, pp. 3-8.

27

Guidebook/3, Section 3.2.2.4, pp. 3-7.

28

Guidebook/3, Section 3.4.5, pp. 3-24.

13

45. To sum up, the Expert finds it essential to review the association between the
Objector and the clearly delineated community at the standing phase while sheleaves the review of the association between the community and the gTLD string
for the merits stage.

3. The scope of the “substantial” opposition to the gTLD
46. The Expert has also been concerned by the criterion of the “substantial opposition.”
47. In order to determine whether there is substantial opposition to the gTLD, asrequired in the Guidebook/3, it is essential to determine the scope of thecommunity to which the requirement of a “substantial opposition” applies. The
Expert would like to point out the difference in wording in parts of the
Guidebook/3 and the Procedure. The Attachment to Module 3 which, it is reminded
here, is called the Procedure, establishes in its opening statement that “(t)hese
Procedures were designed with an eye towards timely and efficient dispute
resolution. As part of the New gTLD Program, these Procedures apply to allproceedings administered by each of the dispute resolution service providers(DRSP).”29
48. In order to follow the Expert’s reasoning at this early point, it is worth indicating at
the outset that four criteria have to be fulfilled for a Community Objection to
succeed on the merits: a clearly delineated community, a substantial opposition, astrong association of the community with the relevant string and a detriment to thecommunity.30
49. The Expert is concerned here with the scope of the required “substantial
opposition.” Article 2(e)(iv) of the Procedure requires “substantial opposition …
from a significant portion of the community to which the string may be explicitly
or implicitly targeted.” This formula was already more or less enunciated in theStandards, more precisely in Section 3.5.4 of the Guidebook/3,31 where it is statedthat it has to be determined “whether there is substantial opposition from asignificant portion of the community to which the string may be targeted.” Whendeveloping the test of “substantial opposition”, it is stated in this same Section that“(t)he Objector must prove substantial opposition within the community it has
identified itself as representing.”32 These do not necessarily seem to be identicalcommunities.
50. Determining whether the community targeted by the new gTLD and thecommunity an objector identifies itself as representing are more or less the same isat the core of a Community Objection. In fact, for an objection to be sustained, the29

Procedure, p. 1.

30

See paragraph 57 of this Determination below.

31

Guidebook/3, Section 3.5.4, pp. 3-22 to 3-23.

32

Guidebook/3, Section 3.5.4, pp. 3-23.

14

objector bears the burden of proving that those communities are intimately
associated. The Expert has two options regarding the scope of the “substantial
opposition.” She can either consider that “substantial opposition” simply refers to
the community which the Objector considers itself as representing (Option A) orthat it refers both to this community and to the community to which the new gTLD
string is explicitly or implicitly targeted (Option B). In order to solve this issue, theExpert refers again to the principle of effet utile, which can be considered to be
alluded to in the Procedure whose goal is an “efficient dispute resolution” and tothe overall objectives of ICANN’s new gTLD strings and the expert procedureassociated with them.33
51. The Expert will therefore first examine the consequences of Option A. If thesubstantial opposition referred only to the community in the name of which the
opposition is filed, this would render this requirement almost meaningless. Indeed,
it would allow almost any small and even a very small community in the world tosubmit a successful objection if all its members were in agreement. If a substantial
opposition among the sole community an objector represents were sufficient for an
objection to be sustained, this could open the floodgates to abusive objections.
Minor communities within the larger community explicitly or implicitly targetedby an applied-for gTLD could oppose to the registration without representing
substantial opposition within the larger community.
52. Let us take an example linked with the string dealt with here. If an institution called“The Republicans” argued to represent all the republicans in a small town of 200
inhabitants and all inhabitants had sent an e-mail supporting the objection, wouldthat be sufficient for an expert to find a substantial opposition to the string.republican, which is deemed to apply worldwide to the global Internet
community? The negative answer seems self-evident. To accept that a small andeven very small unanimous community represented by a duly establishedinstitution could successfully object to a string virtually applicable to millions ofpeople in the world would defeat the process of validation of the new gTLD strings
set up by ICANN.
53. Moreover, one should keep in mind that the ICANN new gTLD Program is aimed
at developing competition and consumer choice, 34 and not at setting easy
limitations to the development of new gTLDs.
54. Therefore, the Expert considers that the only meaningful test is Option B, i.e. thatthe substantial opposition has to exist both at the level of the community invokedby the Objector and of the community targeted by the new gTLD string.
55. It could have seemed appropriate to verify that there exists a substantial opposition
from the community invoked by the Objector at the standing level, as only an
33

See paragraph 47 of this Determination above referring to the opening statement of the Procedure andPreamble of the Guidebook.
34

Guidebook, Preamble.

15

institution representing a community clearly opposed to the test should havestanding. And it could have seemed equally appropriate for an objector,
representing a clearly delineated community unanimously objecting to a new
string, to succeed at the merits level, only if its objection represents a substantial
opposition to the community to which the string is targeted. However, in order not
to make the analysis overly intricate, the Expert will analyze the double test of the“substantial opposition” at the merits level, taking among others into consideration
the fact that the factors to be taken into account for such finding are only
mentioned in Section 3.5.4 of the Guidebook/3 relating to the merits.35
56. After due consideration of the different indications given in the applicable texts
interpreted in order to make them overall meaningful and the goals of ICANN, theExpert thus considers that a double analysis should be conducted with regard to thecriterion of substantial opposition. First, the Expert shall review whether in thecommunity represented by the Objector, opposition is substantial, second, theExpert shall determine whether opposition is also substantial within the community
targeted by the string. Although it would have been logical to perform the first
analysis at the standing level and the second at the merits level, the Expert, as
mentioned above, for the sake of simplicity and in order to follow as much as
possible the texts to be applied, will examine this double test at the merits level.

4. A summary of the Expert’s approach
57. The Expert, in applying the texts with due regards to their effet utile and the generalgoals of ICANN in launching these procedures for the review of the new gTLD
strings, will proceed in the following manner:-

In order to verify the standing of the Objector:
1. First, as a preliminary question, establish whether there
exists a clearly delineated community named by the
Objector;
2. Second, examine whether the Objector is an establishedinstitution and;3. Third, analyze whether the Objector has an ongoing
relationship with the community initially found to exist
in the first step of the reasoning;-

35

Then, once it is established that there is standing to object,which implies that there exists a clearly delineated community,
in order to analyze the merits of the Objection, the Expert
must still verify that:

Guidebook/3, Section 3.5.4, pp. 3-23 to 3-24.

16

1. First, there is a substantial opposition towards theapplied-for gTLD meaninga. substantial opposition within the community
represented by the Objector (the “objecting
community”), and;b. substantial opposition of a significant portion of
the community to which the string is targeted (the“string community”);
2. Second, there is a strong association between thecommunity represented by the Objector and the newstring;
3. Third, there is a likelihood of material detriment to thecommunity represented by the Objector.

B. STANDING TO OBJECT

58. Prior to reviewing the merits of the Objection, the Expert must be satisfied that the
Objector has standing to object. This threshold requirement is set out at Section
3.2.2 of the Guidebook/3, which provides that “(o)bjectors must satisfy standing
requirements to have their objections considered.”36
59. As far as Community Objections are concerned, Section 3.2.2.4 of the
Guidebook/3 provides that established institutions associated with clearlydelineated communities have standing to object. 37 In order to have standing to
object, the Objector must prove both of the following:(a) It is an established institution, and;(b) It has an on-going relationship with a clearly delineated community.

60. This same paragraph indicates that in order to verify the existence of a standing to
object, the analysis has to focus on “the community named” by the Objector.
61. The first step of any inquiry on the existence of a standing to object is therefore toascertain which community has been named by the Objector. Thereafter, the Expert
will examine whether the Objector is an established institution, which has an
ongoing relationship with a clearly delineated community, if such a community has
been determined to exist.38

36

Guidebook/3, pp. 3-5.

37

Guidebook/3, Section 3.2.2.4, pp. 3-7.

38

These criteria are summarized above at para. 57.

17

62. It can be noted at the outset that the Objector considers that “(t)he RNC has
standing to object to the registration of .republican,”39 while the Applicant statesthat “(a)s an initial matter, the RNC does not have standing to submit this objection…”40 The Objector contends both that the RNC is an established institution andthat it is associated with the clearly delineated Republican Community. In fact, an
attentive lecture of the Objection shows that the Objector never really demonstrates
the existence of a clearly defined Republican Community, but states it as an
unproven assumption, merely discussing what it describes as “strong, ongoing
relationships”41 between the RNC and this supposedly clearly defined community.
The Applicant does not contest the fact that the RNC is an established institution,
but considers that there exists no clearly delineated Republican Community,
neither domestically in the United States nor internationally; having come to theconclusion that the Republican Community invoked is not a clearly delineatedcommunity, the Applicant did not discuss the existence or inexistence of an
association of RNC with such undefined community.

1. First: Is a clearly delineated community named by the Objector?
63. The first point to ascertain is to understand in the name of which community the
Objector purports to object. The Guidebook/3 invites the Expert to balance thefollowing factors in order to determine the existence of a clearly delineatedcommunity:42-

The level of public recognition of the group as a community at a local
and/or global level;-

The level of formal boundaries around the community and what persons
and entities are considered to form the community;-

The length of time the community has been in existence;-

The global distribution of the community;-

The number of people or entities that make up the community.

64. The Expert is not limited in her inquiry by these factors, as it is indicated in the
Guidebook/3 that this list is not limitative.
a. Which community has been named by the Objector: the Republican Party or
the Republican Community?
i.

The naming of the Republican Community

39

Objection, p. 2.

40

Response, p. 4.

41

Objection, p. 4.

42

Guidebook/3, Section 3.2.2.4, pp. 3-22.

18

65. Firstly, the Expert has faced a difficult challenge in trying to ascertain which
community the Objector was identifying as the clearly delineated community
giving it standing to act. As has been noted, in the Form the Objector presents itself
as “representing the United States Republican Party” which it alleges “is anestablished institution representing the interests of the clearly delineatedRepublican Community.” 43 (Emphasis added) Under this formulation, thecommunity, although baptized “the Republican Community” can only beassimilated to the community represented by the Party composed of the members –physical or institutional – of the United States Republican Party. In other words,
the two expressions seem to cover the same reality, and at that stage it appears that
the US Republican Party and the Republican Community are to be considered assynonymous.
66. However, further reading of the Memorial developing the substantive aspects of the
Objection leads to ambiguity, as the RNC presents itself as acting “on behalf of theUnited States Republican Party and the larger Republican Community.” 44(Emphasis added) This indicates that the RNC claims to speak for a larger
community than the one represented by the US Republican Party. It thus appears
that the RNC invokes two different communities, in the first place the US
Republican Party and in the second place (“and”) “the larger Republican
Community.”(Emphasis added) The use of the definite article “the” instead of “a”
conveys the idea that there is only one possible Republican Community in the
Objector’s mind.
67. There is however a third step in the Objector’s presentation based on a semantic
shift from the main community invoked initially – the US Republican Party – to alarger community – the Republican Community – invoked subsequently, thatwould be encompassed in the usual meaning of the string .republican, in the
English language: page 2 of the Objection, the RNC concludes its “Introduction”
by stating that “(t)he RNC, on behalf of the Republican Community, opposes
registration of .republican …” (Emphasis added) In other words, the community
referred to here is only “the Republican Community” and the Republican Party is
no longer mentioned, nor is any other more precisely defined community.
68. In sum, although the Objector seems to claim alternatively to represent the UnitedStates Republican Party and/or the Republican Community,45 jointly or separately,
the Expert has come to the conclusion that the Objector presents itself primarily as
representing what it calls “the Republican Community.” This conclusion is basedon the countless references to the expression Republican Community in its
Objection, as well as on the unambiguous title of the conclusion to thedevelopments relating to its standing to object: “The RNC clearly has standing to
43

Objection Form, p. 4.

44

Objection, p. 1. See a similar formulation p. 2: “The RNC files the instant objection in its capacity as
representative of the Republican Party and the Republican Community in general.”45

Republican Community whose contours vary in the different parts of the Objection.

19

object to the registration of .republican on behalf of the Republican
Community.”46(Emphasis added)
69. It is therefore primarily on the basis of the Republican Community, named by the
Objector, that the Expert will examine whether the conditions which have to be
fulfilled by the RNC for it to have standing to object are satisfied.
ii.

The scope of the named community

70. The Expert has found it difficult to understand what the Objector entails by its
reference to the Republican Community. On the one hand, the Objector uses a
general definition of the Republican Community as “a clearly delineated global
group of politically like-minded individuals and entities” of which it purports to be
the official representative. 47 On the other hand, it defines itself as the official
representative of the Republican Party.48 This confusion reaches its climax when
the Objector states the following: “the Republican Community is a clearlydelineated, global community comprised of individuals and entities commonlyinterested in promoting the Republican Party’s agenda.”49(Emphasis added)
71. This back-and-forth between the two concepts – the US Republican Party and alarger Republican Community – is present all along the Memorial and has rendered
the legal analysis extremely difficult.
72. Besides, it appears that the Objector has made some attempts to invoke an evenbroader community than the US Republican Community. It indeed states that“entities and individuals who identify with the Republican Party for business,
political, or personal reasons can be found both nationally and worldwide.” 50(Emphasis added) In the same vein, the Objector states that “the Republican
Community is a clearly delineated, global community comprised of individuals andentities commonly interested in promoting the Republican Party’s agenda.” 51(Emphasis added).
73. Because of the ambiguity of the presentation of the RNC all along its Objection,
the Expert has deemed it necessary to examine the subsidiary and alternative
possibility that such Republican Community invoked by the RNC is in fact thecommunity of the members of the US Republican Party.
74. Indeed, if the underlying assumptions of the objections are focused on, it rapidly
appears that the community invoked under the generic formula of “the Republican
Community” is essentially the community which is represented by the US
46

Objection, p. 7.

47

Objection, p. 7.

48

Objection p. 3 referring to Attachment A to Objection, para. 2.

49

Objection, p. 9.

50

Objection, pp. 1-2.

51

Objection, p. 9.

20

Republican Party. A few formulations found in the Memorial, which justify suchconclusion, can be given here, but there are others. For example, in order todemonstrate that the RNC has strong relationships with “the clearly delineatedRepublican Community,” the RNC explains that it “recognizes elections for its 168
members … elected by each of the fifty United States, the District of Columbia andthe five U.S. territories.”52 On its face, such role of the RNC can only concern the
Party, not any wider Republican Community. Another example is the following:
the Objector asserts that “(a)s the primary organizational body of the Republican
Party, the RNC’s sole purpose is to benefit the Republican Community byidentifying, organizing, and promoting the Republican Agenda. 53 It appears toanyone that the organization of the US Republican Party has for its sole purpose tobenefit the community of the US Republican Party, by the promotion of the US
Republican Party Agenda and not to benefit any other party or entity. A last
example could be given here: it is the contention of the RNC that its role in the
republican presidential nomination process is strong evidence that the RNC
institutional purpose is “to represent the interests of the Republican Community.”54
It is difficult to imagine a role more closely and exclusively linked with the US
Republican Party than the process of nomination of the republican candidate for
President, such a process being quite foreign to any other defined or undefinedcommunity.
75. In order to fully perform her mission, the Expert has also been minded to look at
the public letters sent by the Applicant and the Objector to the global community,
which have been posted on ICANN’s website.55
76. From those letters, the true actors seem to emerge more clearly. The letter of RNC
and RSLC “To whom it may concern” is dated 14 September 2012, the letter sent
by United TLD to ICANN is dated 30 October 2012.
77. The Expert has first focused on the letter sent by the respective Chairmen of the
RNC and the RSLC. The following extracts are relevant:
The Republican State Leadership Committee (“RSLC”) and theRepublican National Committee (“RNC”) submit this letter of publiccomment in opposition to the application by United TLD Holdings Ltd.
(“United TLD”) for the .REPUBLICAN top level domain (gTLD).
…
The RSLC is the largest caucus of Republican state leaders and the only
national organization formed to elect down ballot, state-level
Republican office-holders.
52

Objection, pp. 4-5.

53

Objection, p. 5.

54

Objection, p. 6.

55

At: http://www.icann.org/en/news/correspondence/2012.

21

…
The RNC is the structural heart of the Republican Party of the UnitedStates.
…
If United TLD were allowed to operate .REPUBLICAN, it would be
provided with the imprimatur of authority to represent the interests of
the Republican Party, which is something that the Republican Partystrongly opposes.
Furthermore, users may rely on the .REPUBLICAN gTLD for official
information regarding the Republican Party, voter registration, elected
officials party news and other information relevant and important to a
citizen’s right to vote and engage in the U.S. political system.
78. The unique focus here is on the US Republican Party, its structure, its elections andthe US political system.
79. The Response of United TDL signed by the Director of the company is also
relevant:
First, it is important to note (as we made clear in our application) thatthe label “republican” is not one that can be claimed solely by the
Republican political party operating in the United States. There are
Republican parties operating in many other countries around the world.
Additionally, millions of citizens throughout the world identify
themselves as “republicans” without holding membership in any ofthese Republican parties. Finally, republicanism is a governing conceptthat stretches back to the ancient Greeks, and far beyond the narrower
definition captured by modern political parties themselves. Therefore,
the RSLC and RNC’s argument that United TLD’s application should
be denied because it would give the impression that it is endorsed by the
Republican Party in the United States is not accurate …
United TLD’s application for .REPUBLICAN is an “open” gTLD andtherefore United TLD has no intention to become a “source” for any
content, including any political information.
80. It appears from a close examination of the Objection as well as the just analyzed
public letters that it can also be concluded that both Parties to the present disputeconsidered the community involved to be the Republican Party of the UnitedStates. In other words, the Expert is minded to accept that the Objector presents
itself secondarily as representing the US Republican Party.
iii.

Conclusion

81. Therefore, the Expert, although she considers that the formal Objection de jure has
been raised in the name of the Republican Community, will examine subsidiarily

22the solution that should be adopted if it is considered that it is de facto in the nameof the Republican Party.
b. Is the Republican Community a clearly delineated community?
82. Before entering into the details of the examination of the existence of any specificcommunity, it seems apposite for the Expert to give a general definition of what acommunity is. There is no definition of what should be understood by the term“community” as such in the Guidebook, although it does provide some guidance
and factors to determine what is a “clearly delineated community” in its Section
3.4.5. Unfortunately, the Parties do not either define the notion of community.
According to the Objection, a community could be understood as individuals andentities that identify with ideals different from those of another group. 56 However,such definition is centered on political communities. More generally, the Oxford
Dictionaries define a community as “a group of people (…) having a particularcharacteristic in common.” 57 It is with this general meaning of the term“community” that the Expert will analyze the existence of a clearly delineatedcommunity associated with the Objector.
83. It seems that the concept of community is broad and can encompass many different
types of communities. According to the cited definition, a common characterizationis the necessary element to establish the existence of a community. The common
characteristic can be of different types: it can be the fact of living in the same
territory (in France), or having the same nationality (Italian); it can be the fact ofsharing a common physical characteristic (the community of people having acertain genetic disease) or a common belief (religious groups); it can be acommunity of people having the same activities (professors, lawyers and so on); it
can be a community of thoughts and values (the people opposed to the death
penalty) and so on. Some of these communities seem to be easy to define andclearly delineated, but others imply a more difficult apprehension of their limits,
like a community of thoughts (“une communauté de pensée”) which seems to beless easily delineated.
84. The Objector defines the Republican Community as a clearly delineated global
group of politically like-minded individuals and entities. It considers that “(t)hemany different individuals and entities that comprise the Republican Community
uniformly identify with Republican ideals and thereby are distinguished from thoseadhering to other political ideologies.” 58 Furthermore, the use of the word
republican by a wide spectrum of entities is reported as an illustration of theexistence of a clearly delineated Republican Community.59

56

Objection, p. 7.

57

At: http://oxforddictionaries.com/definition/english/community.

58

Objection, p. 7.

59

Objection, p. 7.

23

85. According to the Objector, the Republican Community is a clearly delineatedgroup of individuals and entities with the common goal of promoting theRepublican Agenda. 60 The first element of its demonstration is the alleged
existence of the Republican Community for over 150 years. Further, the Objector
details that this community includes national, state, and local organizations, as well
as more than 84 million self-identified US Republicans. It enumerates Republican
Party establishments in US states, territories, and counties, and Republican Party
members amongst national and state officeholders. Finally, the Objector considers
that all members of the Republican Community share a common interest in the
promotion of the Republican Party’s social, political and economic agenda.
86. The Applicant denies the existence of a single Republican Community on the
ground that it disregards the geographic and ideological diversity of republicans
throughout the globe. It also rejects the reality of a single Republican Agenda.
From a domestic standpoint, it stresses the diversity of republican entities, acting
independently from the Objector. The political discourse is equally reported as too
disparate to support the Objector’s contention that it represents a single Republican
Community. In addition, the Applicant mentions that the Objector’s platform does
not systematically reflect the platforms of state GOP parties. From an international
standpoint, 51 countries are listed as also having republican parties.61 According to
the Applicant, those are not necessarily affiliated with the Objector, the US
Republican Party, or their ideologies.
87. The Applicant alleges that the Objector fails to demonstrate that there are clear
lines that define a Republican Community. First, the Applicant considers thatworldwide monitoring of US politics does not suffice to establish global
recognition of a clearly delineated Republican Community. Domestically, the issueof who speaks for the Republican Party also remains. Second, the Applicant argues
that there are no formal boundaries around a Republican Community. Third, theApplicant contemplates the existence of Republican forms of governments in
Ancient times independently from the history of the Objector and the ideas
advocated by it. Fourth, the Applicant stresses the fact that the Objector does notaddress the global distribution of the “Republican Community” and argues that the
Objector merely represents a subset of republicans that exist in the US. Fifth, theApplicant contends that if there is such thing as the Republican Community, it isvastly larger than the Objector.
88. First, the Expert wishes to stress the importance of analyzing the meaning of theword republican at this initial stage since it conditions the existence of a
Republican Community. The Parties’ submissions on the question of the existenceof a clearly delineated Republican Community in fact reveal the varying meaningof this adjective republican depending on the substantive word with which it is60

Objection, pp. 5, 9.

61

Response, p. 7 referring to Annex 2(A)-(D) to the Response.

24

associated. As rightly explained by the Applicant, even if it defines a similarelement, the word republican covers different realities due to the geographic andideological diversity throughout the world. In the view of the Expert, from
Aristotle’s student Plato’s “Republic” to the book of Philip Pettit, 62“Republicanism: A Theory of Freedom and Government,”63 representative of the“republicanist” trend in contemporaneous philosophy, there is no unity, which
could define “the” clearly delineated Republican Community.
89. From a general viewpoint, the Expert considers that the noun Republican does nothave a consensual meaning, such as enabling a clear delineation of the Republican
Community.
90. Second, the Expert takes into consideration the five factors listed by the
Guidebook/364 to deepen the review of the existence of a Republican Community.
91. The Expert notes that the Objector neither contemplates the public recognition of
the Republican Community, nor its global distribution. The Applicant on thecontrary, vigorously denies the existence of both factors, focusing on the point that
the Objector only represents the US Republic Party, instead of the Republican
Community. The monitoring of US politics around the globe should not, in any
event, associate the meaning of the word republican to the sole reality of US
politics. Besides, one could argue that in spite of such monitoring, foreign citizens
remain free to feel concerned about US politics. Therefore, the global audience has
no reason to assimilate the Republican Community to US politics; the more sosince historically, “res publica” has a universal meaning turned to all politicalsocieties.
92. Amongst the three remaining factors, the Expert wishes to stress that the Objector’scontention that the Republican Community is made of individuals and entities
sharing the common goal of promoting the Republican Agenda fails due to thediversity of the individuals and entities forming the Republican Community.
93. The Republican Community is reported by the Objector to have been in existencefor 150 years. The Expert is forced to characterize this as an affront to history.
Republican communities have existed since ancient times and many countries havebeen guided by the idea of republicanism throughout their political history. The
Objector appears to wrongfully assimilate the history of its institution with that of
the idea of republicanism.
94. At last, the Objector enumerates all entities making it up and lists 84 million selfidentified US Republicans. The Applicant correctly points out that the Republican
Community extends beyond US Republicans. In the world, the number ofindividuals identifying themselves as republican would actually be significant,62

At: http://fr.wikipedia.org/wiki/Philip_Pettit.

63

Clarendon Press, 1997.

64

Guidebook/3, Section 3.5.4, pp. 3-23.

25

since most political regimes are found to fall under this form of government. 65 The
fact that such a large amount of people identifies with the term republican adds on
to the confusion regarding the boundaries of the Republican Community.
95. Given the doubts regarding the scope of the adjective republican in general and in
this particular case, the Expert, having weighted all the arguments of the Parties,
considers it impossible to delineate formal boundaries of the Republican
Community.
96. A look at the web page of United TDL66 makes one understand that the community
recovering what the Objector has called the Republican Community is undefined,
both in time, geography and even philosophy:
Register your interest in a .REPUBLICAN domain!

Join the debate with a .REPUBLICAN domain!
A powerful name, used around the world for centuries, the word
republican means something to virtually everyone today. Whether it's
Plato's Republic, the scores of countries now governed as republics orthe ideals of political parties around the world -- chances are that you
have a strong and personal connection to this word. (Emphasis added)
97. In principle, the absence of this threshold requirement makes it unnecessary for the
Expert to conduct further analysis of the Objection if it is considered as presented
in the name of the Republican Community. Indeed the presence of a clearlydelineated community is a basic condition whose non-fulfillment blocks any
standing to object at the outset. For the sake of completeness, the Expert will
however confirm this finding when she will analyze the ongoing relationship of the
RNC with the invoked community.67
c. Is the US Republican Party a clearly delineated community?
98. The Expert has determined that it can be considered that de facto the RNC haspresented its objection in the name of the Republican Party. She will therefore
verify whether the community of the members of the US Republican Party
constitutes a clearly defined community.
99. A review of the factors of the Guidebook/368 leads to the conclusion that the US
Republican Party is a clearly delineated community. First, the US Republican Party
has been established as a national party in 1856 and became a major political party

65

The Expert would like to clarify that assimilation of republicanism to democracy is a shortcut since
democracy is only one form of republican government. In addition, if democratic regimes were toconstitute the Republican Community, those would still have to be defined.
66

At : http://www.dotrepublican.net/.

67

See below at paras. 105 to 116.

68

Guidebook/3, Section 3.5.4, pp. 3-23

26

in the US four years later, with the election of Abraham Lincoln as President.69 It
has therefore been in existence for over 150 years. Second, the Republican Party is
publicly and historically recognized as “one of the two major political parties in the
United States of America.”70 In spite of the Applicant’s allegations that there areother institutions which “are overwhelmingly comprised of registered republicans
but their policies may differ in many respects from those of the RNC,”71 and uponwhich “the RNC’s influence continues to wane,”72 the Expert recalls that she needs
only focus on the public recognition of the Republican Party at this stage, not on
the RNC’s. Besides, the Applicant itself concedes that “the leaders of state
republican parties make up the RNC’s membership.” 73 The Expert is therefore
convinced that the US Republican Party represents the major community ofrepublicans in the country. Third, the Expert agrees with the view that theRepublican Party’s boundaries are clearly delineated to “…entities and individuals
who identify with (it),” 74 and especially “(a)nyone participating in Republican
politics.”75 The Applicant’s allegation according to which the act of voting for theRepublican Party does not suffice to constitute a community cannot be sustained.76
Fourth, the number of people making up the community has been reported as
amounting to nearly sixty million in the 2012 presidential elections.77 The Expert issatisfied that such number is significant among a domestic population of 317
million inhabitants.78
100. In other words, as the Expert considers in a subsidiary analysis that the Objector
represents the US Republican Party, she also considers that this is a sufficiently
clearly delineated community, which implies that she will analyze the existence ofan ongoing relationship of the RNC with this community for purposes of verifying
the existence of a standing to object for the RNC.

69

History of the GOP, at: http://www.gop.com/our-party/our-history/.

70

Objection, p. 1. See also, Objection p. 8: the USTPO noted that the designation of the Republican
Party is a “historically famous designation for a major political party.”71

Response, p. 6.

72

Response, p. 9.

73

Response, p. 6. In this regard, see also the discussion under para. 74 above.

74

Objection, p. 1.

75

Objection, p. 7.

76

Response, p. 9.

77

Objection, p. 7.

78

US Population Clock, at: http://www.census.gov/popclock/.

27

2. Second: Is the Objector an established institution?
101. According to the Guidebook/3,79 the Expert may, amongst others, use the following
factors in making this determination:Level of global recognition of the institution;



Length of time the institution has been in existence;

Public historical evidence of its existence.

102. Based on these three elements, the Objector argues that it is an establishedinstitution. First of all, it purports to be domestically and globally recognized as theofficial representative of the Republican Party. This is not only because it considers
itself as the primary Republican institution relied on by US political candidates andelectorate, but is also justified by the alleged worldwide monitoring of US politics.
Moreover, the Objector contends that, founded by the Republican National
Convention in 1856, it has been established for over 150 years. Eventually, theObjector points out the Official Proceedings of the Republican National
Conventions as public historical evidence of its role as the representative of the
Republican Party.
103. The Applicant concedes that the RNC is an established entity.80
104. As a result of the Parties’ common recognition of the Objector as an establishedinstitution, the Expert needs not further analyze this issue.81 In any case, there canbe no doubt that the RNC is an established institution.

3. Third: Is the Objector associated with a clearly delineated community?
105. In order to determine whether the Objector is associated with a clearly delineatedcommunity, the Expert may notably balance the following elements:82
The presence of mechanisms for participation in activities, membershipor leadership;Institutional purpose related to the benefit of the associated community;

Performance of regular activities that benefit the associated community;The level of formal boundaries around the community.

79

Guidebook/3, Section 3.2.2.4, pp. 3-8.

80

Response, p. 5.

81

By the same token, absent any challenge from the Applicant, the Expert is satisfied with the fact it has
been established that the RSLC, the Republican State Leadership Committee, the Related Entity is the
only organization formed to elect down-ballot, state-level Republican officeholders, Objection, p. 4.
82

Guidebook/3, Section 3.2.2.4, pp. 3-8.

28

106. The Expert will show that, even if the Republican Community were clearlydelineated, the Objector has no on-going relation with it, as all its relations are with
the US Republican Party.
107. First, as the official representative of the Republican Community, the Objector
considers that it employs established, reliable mechanisms to allow active
participation of its constituents. Second, it adds that its primary purpose is topursue the Republican Agenda on behalf of the Republican Community. Third, it
purports to engage in regular activities designed to promote the interests of andbenefit the Republican Community.
108. The Applicant focuses on alleging the inexistence of a single Republican
Community. As a consequence, it does not directly address the association of the
Objector with the Republican Community.
109. In order to determine whether the Objector has an ongoing relationship with either
the Republican Community or the US Republican Party, the Expert turns to thefactors set out in the Guidebook/3 and addressed by the Objector.83
110. Firstly, the Objector demonstrates the presence of mechanisms for participation
within its institution, especially through internal elections systems. It purports toallow constituents of the whole Republican Community to participate. However, its
representatives are “elected by each of the fifty United States, the District ofColumbia, and the five US territories.”84 Therefore, its participation mechanisms
are, at best, only directed to the US Republican Party.
111. Secondly, the Objector alleges that its institutional purpose of pursuing theRepublican Agenda benefits the Republican Community. Its missions are reported
as including political reforming and fundraising, as well as coordinating with otherrepublican entities. Based on the diversity of the Republican Community, theApplicant denies the existence of a single Republican Agenda. Albeit the US
Republican Party follows its own agenda, the Expert does not believe that all
republicans around the world share the same objectives at the same time. In somecountries, republican groups may be struggling to establish a democratic
government, whereas in others, such parties mostly concentrate on social reform.
However, although the Expert agrees with the Applicant that republicans at the
local level in the US are diverse, she considers that the constituent elements of the
Republican Party can still be deemed to constitute the clearly delineatedcommunity with which the RNC has an ongoing relation.85
112. Thirdly, communication campaigns, public relation events, or educational
programs are cited by the Objector as the regular activities, which it performs tothe benefit of the Republican Community. Such activities certainly impact the83

See above, para. 105.

84

Objection, p. 5 referring to Attachment A to Objection, para. 9.

85

See also above at para. 99.

29

community it represents. Nonetheless, the Objector cannot purport to carry on
activities benefiting all republicans around the world. Its activities, undertaken for
the US Republican Party, may have a rebound effect on other republicans aroundthe globe. Yet, this effect may either be beneficial or detrimental, when thoseindividuals and entities have diverging views from that of the Objector. The public
activities performed by the RNC clearly are aimed at the US Republican Party.
113. Based on these elements, the Objector does not satisfactorily demonstrate that it isassociated to a large Republican Community which extends beyond the US
Republican Party.
114. To go on, the Expert needs to examine some elements, which the Objector
introduces as evidence of its association with the Republican Community. Thoseare the US Patent and Trademark Office’s rejection of an application by a nonaffiliated entity to register the trademark “republican party,” and the Applicant’scommercial offer made to the Objector and the Related Entity regarding the.republican gTLD. The Applicant considers these facts as irrelevant to prove the
Objector’s association with the Republican Community
115. The Expert finds it inappropriate to discuss US trademarks law issues in a domainname dispute governed by its own rules of law. 86 . The trademark was denied
registration, as it is a generic word; and the case was suspended due to on-going
litigation. In addition, the Expert does not find the commercial offer made by agTLD company to its potential clients sufficient to associate those clients to theglobal community, which the gTLD allegedly covers. It follows that the evidence
relied on by the Objector does not support its association with the Republican
Community.
116. In short, even if the Republican Community were considered as clearly delineated,
the Objector does not demonstrate that it is closely associated to such community.
The Expert is however satisfied that the RNC can demonstrate that it is closely
associated with the US Republican Party.

4. Conclusion
117. The Expert concludes that the Objector does not have standing to object to theApplicant’s registration of the new gTLD .republican, in the name of the so-called
Republican Community, as it cannot be considered as a clearly delineatedcommunity, contrary to the US Republican Party. The Expert acknowledges the
Objector as an established institution. But, even if the Republican Community were
found to be clearly delineated, the Objector is not closely associated with theRepublican Community. To the contrary, as the Objector is an establishedinstitution having an ongoing relationship with the clearly delineated community of86

The rules applicable to these proceedings are cited above at para. 16.

30

the members of the US Republican Party, the Expert considers that it has standing
to object on this basis, i.e. in the name of the US Republican Party.
118. The Expert will therefore analyze the merits on the assumption that the Objector is
objecting to the new gTLD .republican in the name of the US Republican Party.

C. MERITS OF THE OBJECTION

119. According to Article 20(a) of the Procedure, the Panel shall apply the standards
defined by ICANN for each category of Objection identified. The “Dispute
Resolution standards” are set out at Section 3.5 of the Guidebook/3. As was thecase for the standing to object test, the Objector bears the burden of proving that
the Objection complies with the applicable standards.87
120. Article 2(e)(iv) of the Procedure states that a Community Objection refers to “theobjection that there is substantial opposition to the application from a significant
portion of the community to which the string may be explicitly or implicitly
targeted.”88
121. The general presentation of the standards to be fulfilled at the merits level for acommunity objection to succeed are stated in Section 3.5.4:89
The four tests described here will enable a DRSP panel to determine
whether there is substantial opposition from a significant portion of thecommunity to which the string may be targeted.
122. The four requirements for a Community Objection to prevail, established in thisdefinition, are then detailed as follows:(a) Community – The objector must prove that the community
expressing opposition can be regarded as a clearly delineatedcommunity (test 1);(b) Substantial opposition – The objector must prove substantial
opposition within the community it has identified itself as representing(test 2);(c) Targeting – The objector must prove a strong association between
the applied-for gTLD string and the community represented by theobjector (test 3);(d) Detriment – The objector must prove that the application creates alikelihood of material detriment to the rights or legitimate interests of a87

Cf. Procedure, Article 20(c), p. 10.

88

Procedure, p. 3.

89

Guidebook/3, Section 3.5.4, pp. 3-23 to 3-23.

31

significant portion of the community to which the string may be
explicitly or implicitly targeted (test 4).
The Objector must meet all four tests in the standards for its Objection to prevail.
123. In these proceedings, the Objector contends that its Objection meets the ICANN
standards as it demonstrates substantial opposition among a significant portion of
the Republican Community to the registration of .republican as a new gTLD andcreates a likelihood of material detriment to the community it represents. In
contrast, the Applicant argues that the Objection fails to meet the ICANN
standards.
124. The Expert has already determined in her analysis of the existence of a standing to
object, that the US Republican Party was a clearly delineated community. 90 In
other words, test 1 needs not be reexamined at this stage.
125. There remains therefore to determine whether test 2, 3 and 4 are also satisfied.

1. First: Is there substantial opposition to the applied for gTLD string ?
126. It has already been indicated by the Expert that for a substantial opposition to befound to exist, there must be both the requirement of a substantial opposition at thelevel of the clearly delineated community and the requirement that this opposition
represents an opposition from a significant portion of the community to which thestring is targeted.91 The Expert will address these two issues successively.
127. On a preliminary note, the Expert would like to clarify the meaning of a“substantial opposition.” As rightly pointed out by the Independent Objector, theword substantial not only covers the number of oppositions, “but also the material
content of comments and oppositions expressed by those concerned, and inparticular, the importance of the rights and interests at stake.” 92 Therefore, todetermine whether opposition to the string registration is substantial, the Expert
shall consider both the quantity and the quality of oppositions.
a. Is there a substantial opposition among the community the Objector has
identified itself as representing?
128. According to the second test in the standards, the Objector must prove substantial
opposition within the community it has identified itself as representing. For thispurpose, the Guidebook/3 points to the following factors:93

90

See above at paras. 98 to 100.

91

See above at paras. 46 to 56.

92

Independent Objector’s Objection to the .Hospital domain name, para.
http://www.independent-objector-newgtlds.org/english-version/the-independent-objector-sobjections/hospital-withdrawn-objection/.
93

23,

at:

Guidebook/3, Section 3.5.4, pp. 3-23 to 3-24.

32



Number of expressions of opposition relative to the composition of thecommunity;

The representative nature of entities expressing opposition;Level of recognized stature or weight among sources of opposition;



Distribution or diversity among sources of expression of opposition
including: regional, subsectors of community, leadership of community,
membership of community;Historical defense of the community in other contexts;



Costs incurred by objector in expressing opposition, including otherchannels that objector may have used to convey opposition.

129. The Objector considers this to be clear, as its mission is to represent the interests of
the US Republican Party, 94 including in these proceedings. The costs incurred forthis Objection as well as those for its string confusion objection further
demonstrate the strength of such opposition.
130. The Applicant purports that there is no substantial opposition against its
Application. Domestically, only the Related Entity joins the Objection.
Internationally, the Objection is not backed by any organization.
131. The Expert limits her review of the opposition to the new gTLD to the factors
discussed by the Parties. The Objector contends that it is the official representativeof the Republican Party representing sources opposed to the registration. The
Expert agrees with the Objector on the fact that opposition expressed by two major
institutions of the Republican Party to the registration of a globally designed gTLD
is substantial, as these organizations can be considered as broadly representative of
the US Republican Party.
b. Is there a substantial opposition from a significant portion of the community
to which the string is targeted?
132. This implies, in the understanding of the Expert, that there is both a substantial
opposition inside the clearly delineated community invoked by the Objector, as
already verified, as well as outside this community in the framework of what theExpert will call “the string-community”, in other words, “the community to which
the string may be explicitly or implicitly targeted.” Indeed, Section 3.5.4 of the
Guidebook/3 requires that “(c)ommunity opposition to the application issubstantial,” referring therefore to substantial opposition inside the community inwhose name the Objector presents its Objection, which the Expert will call the“objecting community.” If this test is read against the general condition of a“substantial opposition from a significant portion” of the string-community, it
implies that, for an objection to succeed, the substantial opposition inside the94

Objection, p. 2.

33

objecting community must be deemed to represent a substantial opposition from asignificant portion of the string-community.
133. In other words, the clearly delineated community, which will by definition besmaller than the string-community, has to be able to be considered as speaking in
the name of a significant portion of the string-community. The term portion, in theExpert’s view, has to be understood in a broad, teleological manner. It cannot only
be a quantitative portion, it can also refer to qualitative aspects. In other words, if
the substantive opposition of a clearly delineated objecting community can beconsidered as representing the voice of a significant portion of the stringcommunity, like by a defense of its core values or its core characteristics, and if allother tests are satisfied, the objection should be upheld.95
134. The Expert cannot consider that an Objection by an institution representing the sole
US Republican Party is a substantial opposition from a significant portion of thecommunity to which the string is targeted. Without minimizing the importance ofthe role of the United States of America in the world, accepting that the oppositionof the US Republican Party stemming only from their territory could be equated toa substantial opposition from a significant portion of the community to which thestring is targeted, would amount to a purely US centered view of global politics
and would not take into account the contemporaneous reality of the globalization of
the world economy.
135. It follows that test 2 is partially unsatisfied: although it has been concluded by theExpert that there was a substantial opposition from the US Republican Party, suchopposition cannot be deemed to represent a substantial opposition from asignificant portion of the community to which the string is targeted.
136. For the sake of completeness, the Expert will however also examine the other tests.

2. Second: Is the applied for gTLD string strongly associated with thecommunity represented by the Objector?
137. To fulfil the third test, the Objector must prove a strong association between the.republican string and the community it purports to represent. The Guidebook/3
draws the three following factors to the attention of the Expert:96Statements contained in application;

Other public statements by the applicant;

Associations by the public.

95

This is also in line with the Expert’s understanding of the meaning of “substantial opposition” detailed
at para. 127 above.
96

Guidebook/3, Section 3.5.4, pp. 3-24.

34

138. The Objector alleges that the word republican used in the applied-for gTLD is
associated with the Republican Party. It considers this assimilation to be
domestically and internationally spread in the public, and reflected by thedefinitions found in a US dictionary and on the Internet. In the Objector’s view, theexistence of alternative meanings of the word republican is not a relevant factor in
the case at hand. In addition, the Objector emphasizes the fact that in its
Application,97 the Applicant concedes that .republican seeks to become a politicalforum, thus relating to the Republican Party. The Objector considers the
Applicant’s parent company’s attempt to sell rights or interests in .republican
directly to the Republican Party as further evidence of the association between theword republican and the Republican Party.
139. For its part, the Applicant retorts that the community represented by the Objector isin fact associated with the .gop gTLD. 98 The Applicant first considers that the
public association of the word republican extends to the broad notion of
republicanism; the strings .republican and .gop hence covering different scopes.
The Applicant further argues that the description of the gTLD in its Application,99
completed by the offer made to the Objector and the Related Entity, are consistent
with its proposition to allow the Objector, together with other groups, to use thestring.
140. Further, in its Application, the Applicant refers to republicans as potential users of
the proposed gTLD through the following statement in its answer to Question 18:“The term republican has held a long and storied place in the history of
government and politics. In the thousands of years since the Roman
republic forever changed the face of government, people have identified
themselves as Republicans. Individual citizens, political parties, civic
and student organizations, newspapers and even cities have adopted thename and its proud heritage. Global in scope, today a passionate groupof hundreds of millions of individuals and thousands of organizations
identify with this word. The mission and purpose of the .republican
TLD is to establish an easily recognized and accessible namespace forthis large and dynamic group.”100 (Emphasis added)141. Therefore, the Expert is satisfied that the new gTLD is directed to all republicans in
the world, including US republicans represented by the Objector and the Related
Entity, acting in the name of the US Republican Party. Similarly, the Expert
considers that an offer made by a gTLD company to some of its potential clients is

97

Objection, p. 12 referring to Application, question 18(b)(i).

98

GOP stands for Grand Old Party.

99

Response, pp. 11-12 referring to Application, question 18(a).

100Application, question 18(a).

35

no evidence of the sole association of this string with the community they purport
to constitute, even if it shows however a strong association.101
142. In brief, the Expert concludes that test 3 is satisfied, as the string .republican isstrongly associated with the Republican Party, the community represented by the
Objector.

3. Third: Does the Application create a likelihood of material detriment tothe community?
143. For its Objection to be sustained, the Objector must eventually prove that the
Application creates a likelihood of material detriment to the rights or legitimate
interests of a significant portion of the community to which the string may be
explicitly or implicitly targeted. The Expert is advised to balance the following
factors in revising this final condition:102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 inaccordance with the interests of the community or of users more widely,
including evidence that the applicant has not proposed or does notintend to institute effective security protection for user interests;Interference with the core activities of the community that would result
from the applicant’s operation of the applied for gTLD string;

Dependence of the community represented by the objector on the DNS
for its core activities;

Nature and extent of concrete or economic damage to the community
represented by the objector that would result from the applicant’s
operation for the applied for gTLD string;

Level of certainty that alleged detrimental outcomes would occur.

144. The Objector argues that the registration of this string by the Applicant would be ofmaterial detriment to the US Republican Party. First, the Applicant’s history andpractices are stated as the illustration of its intention to operate the string inaccordance with its own commercial interests. Its applications are qualified as
speculative. Furthermore, applying both for .republican and .democrat at the sametime, the Applicant is charged with lacking political interest. The Applicant’s
parent company, Demand Media, is criticized in turn for using the “content farm”
model to speculate on the Internet. Second, the Objector alleges that the101

See also the discussion above at para. 115.

102

Guidebook/3, Section 3.5.4, pp. 3-24 to 3-25.

36

Applicant’s operation of .republican would cause confusion regarding the source of
the information and lead to the misimpression that the information contained on the.republican site is connected with the Republican Party. This would interfere with
the Republican Party’s core activity of sharing information regarding its ideals,
platforms and agenda. Third, the Objector points out that the Applicant’s operationof the string would certainly cause actual and irreparable reputational andeconomic harm to the Republican Party. The confusion would arise from theparallel operation of the GOP website and the .gop gTLD. Moreover, the Objector
underscores the potential harm that could derive from the Applicant’s conveyanceof incorrect or poor content on the string.
145. The Applicant sustains that the registration of .republican would not cause any
material detriment to the rights or legitimate interests of republicans. Instead, itwould be directed to all individuals associated with republican ideals and promote
ICANN’s goal of competition and consumer choice. The Applicant confirms thatits commitment in operating an open global gTLD is aimed at promoting or
discussing republican political issues. In addition, it rejects the contention that
.republican would interfere with the Objector’s core activities. Finally, theApplicant considers that the Objector should not deprive other republican parties
and organizations around the world of being offered the new gTLD.
146. The Expert first turns to the allegation that the Applicant does not intend to operate
the gTLD in the interests of the Republican Party. The Objector argues that the
Applicant is a pure speculator without political interest. However, the Applicant
declares operating in the interests of the Republican Community.
147. The Expert is not convinced by the argument that commercial interests jeopardize
political interests in this situation. Furthermore, the fact that the new gTLD isdirected to the largest group of republicans throughout the world is in line with thebroad definition of the large Republican Community to which the string is targeted.
In the Expert’s view, this is also in line with the New gTLD Program, aimed at
fostering diversity, encouraging competition and creating new options for
consumers in the world. 103 As a matter of fact, there is no evidence that the
Applicant is not going to act in the interests of the broad Republican Community,
as appears in the statements of United TDL in its Application:
United TLD is committed to operating .republican in a manner that promotes
inclusiveness, while creating a safe environment for consumers and rights
holders.104
United TLD will be inclusive in its registration policies for this broad andgeneric TLD. We will not limit registrant eligibility for second-level

103

Guidebook, Preamble.

104

Application, question 18(a).

37registrations and will provide registration services to all legitimate
registrants.105
148. Second, the Expert turns to the potential concrete economic damage caused by theoperation of the string on the Republican Party. According to the Objector, harm
would especially be caused to its reputation due to the confusion between the.republican string and the GOP’s string. This would also interfere with its core
activity of sharing information about the Republican Party.
149. The Expert regards the existence of those two strings on the Internet as theillustration of the reality, where republicans throughout the globe divide into
national republican parties, including the GOP. In addition, the risk that the
Applicant would convey different information from that provided by the GOP
should not be understood as a direct threat on the Objector. Rather, this is inherent
to any communication platform and favors the freedom of expression. A system
where institutional bodies of a community control communication vehicles isdangerous for civil liberties.
150. In addition, the Expert would like to emphasize the Guidebook’s special mention,according to which: “(a)n allegation of detriment that consists only of the applicant
being delegated the string instead of the objector will not be sufficient for a findingof material detriment.”106 This seems to be at point in the present case, since theApplicant qualifies the Objection as the Objector’s attempt to eliminate
competition for its own gTLD. 107 The Expert considers that there is no need toenter into this controversy because the Objector has not applied for registration of
the .republican string itself. Moreover, as accurately recalled by the Applicant, theObjector is in control of its .gop gTLD and is eligible to register its own domainname under the .republican gTLD. 108 In the Expert’s view, concrete economic
damage on the Republican Party is therefore not established by the registration of
the .republican string.
151. Third, the Objector acknowledges that “it is too soon in the nascent gTLD world toknow the exact harm likely to be caused by the registration of .republican.”109 In
the Expert’s understanding, such statement is far from establishing a likelihood ofmaterial detriment created by the applied-for gTLD.
152. All in all, the Expert is not convinced that the .republican string, targeted to therepublicans of the world, is likely to cause material detriment to a portion of the
Republican Community represented by the US Republican Party. This is because itis neither established that the Applicant would not act in the interests of the
105

Application, question 18(b)(iv).

106

Guidebook/3, Section 3.5.4, pp. 3-24.

107

Response, p. 4.

108

Response, p. 13.

109

Objection, p. 18.

38

Republican Community, nor that the registration would cause concrete economic
damage to the US Republican Party.

4. Conclusion
153. In conclusion, even if the Objector has standing if it is considered as representing
the US Republican Party, and the conditions of substantial opposition inside theRepublican Party and the existence of a strong association of the Republican Party
with the applied-for string .republican are fulfilled, the Expert has reached theconclusion that there is neither a substantial opposition to the Application from asignificant portion of the community to which the string may be explicitly or
implicitly targeted, as the Republican Party only relates to US politics, nor alikelihood of detriment to the Republican Party, if the new gTLD is granted to theApplicant, United TDL.
154. As the four conditions for a successful objection are cumulative and not alternative,
the Expert concludes that the Objection has to be rejected. Therefore, the Expert
rejects the Objection filed by the Objector and joined by the Related Entity against
the Applicant’s Application for the registration of the new gTLD string .republican.
155. The Centre shall refund the costs advanced by the Applicant, although theApplicant has not requested this directly (whereas the Objector has). The Expert
does not consider that in granting the refund of its costs to the Applicant, she acts
ultra petita. Article 14(e) of the Procedure provides that the Centre shall refund to
the prevailing party, as determined by the panel, its advance payment(s) of costs.110
The Expert considers therefore that the refund of costs is a right automaticallygranted to the prevailing party, once the Expert has designated that prevailingparty.
156. The Expert Determination shall be published in full on the ICC’s website.111

V.

DETERMINATION

157. For the reasons stated above, UNITED TLD HOLDCO LTD, the Applicant inthese proceedings prevails and the REPUBLICAN NATIONAL COMMITTEE’s
Objection is dismissed.
158. The Applicant is therefore entitled to refund of its advance payment of costs by theCentre pursuant to Article 14(e) of the Procedure.
159. This constitutes the Expert’s final and binding findings.

110

Procedure, article 14(e), p. 9.

111This is the principle set forth at article 21(g) of the Procedure, p. 11.

39

Date: 7 January 2014

Signature:

Professor Brigitte Stern
Expert40