THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/491/ICANN/108

FAIRSEARCH.ORG
(USA)
vs/
CHARLESTON ROAD REGISTRY INC.
(USA)

This document is an original of the Expert Determination rendered in conformity with the
New gTLD Dispute Resolution Procedure as provided in Module 3 of the gTLD Applicant
Guidebook from ICANN and the ICC Rules for Expertise.

Case No. ICC EXP/491/ICANN/108

THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCEFAIRSEARCH.ORG(USA)
The Objector
vs/

CHARLESTON ROAD REGISTRY INC.
(USA)
The Applicant

EXPERT DETERMINATION

Expert Panel:
Mr. Vladimir Khvalei
Baker & McKenzie
9 Lesnaya Street
Moscow 125047
RussiaTABLE OF CONTENTS
I.

DEFINED TERMS .................................................................................................. 4

II.

THE PARTIES ........................................................................................................ 5III.

DISPUTE RESOLUTION SERVICE PROVIDER ................................................... 5

IV.

EXPERT PANEL .................................................................................................... 5V.

COUNSEL TO THE PARTIES, COMMUNICATIONS ............................................ 6

VI.

LANGUAGE ........................................................................................................... 7VII. PROCEDURAL HISTORY...................................................................................... 7
VIII. SUMMARY OF THE PARTIES' POSITIONS ......................................................... 8

IX.

1.

Summary of the Objector's Position ........................................................... 92.

Summary of the Applicant's Position ....................................................... 11

FINDINGS............................................................................................................. 15
1.

Issues to Be Determined............................................................................ 15

2.

Legal Rules Applicable to This Dispute ................................................... 16

3.

Timeline of the Payments by the Parties to ICC and Its Impact on
Validity of the Objection ............................................................................ 17

4.

Whether the Arguments (Other Than Those Related to the Points Listed
in Sections IX(5) and IX(6) of this Expert Determination) Raised in the
Objection are Admissible in the Current Proceedings ? ........................ 18

5.

Whether the Objector Meets the Test of Section 3.2.2.4 of the
Guidebook................................................................................................... 19

6.

A.

Whether the Objector Is an Established Institution ........................ 19

B.

Whether There Is an Ongoing Relationship with a Clearly
Delineated Community ...................................................................... 22

Whether the Objection Meets the Test of Section 3.5.4 of the Guidebook..................................................................................................................... 25
A.

Whether the Community Invoked by the Objector is a Clearly
Delineated Community ...................................................................... 25

B.

Whether there Is a Substantial Opposition from the Community to
the Application ................................................................................... 29
2

7.
X.

C.

Whether There Is a Strong Association between the Community
Invoked by the Objector and the Disputed gTLD ............................ 32

D.

Whether there Is a Likelihood of Material Detriment to the Rights orLegitimate Interests of a Significant Portion of the Community to
Which the Disputed gTLD May Be Explicitly or Implicitly Targeted............................................................................................................. 33

Publication of the Expert Determination .................................................. 38

DECISION ............................................................................................................ 38

3

I.

DEFINED TERMS

1.

Applicant – Charleston Road Registry Inc., a company with its registered office at 1600
Amphitheatre Parkway, Mountain View 94043, California, USA.

2.

Additional Written Submissions – the Applicant's Additional Written Submission and the
Objector's Additional Written Submission when referred to together.

3.

Applicant's Additional Written Submission – response to the Objector's Additional
Written Submission submitted by the Applicant to the Centre on 12 August 2013 (13August 2013 Moscow time).

4.

Application – application for the Disputed gTLD dated 13 June 2012 (Application No. 11417-46480) filed by the Applicant.

5.

Centre – the International Centre for Expertise of the International Chamber of Commercewith its registered address at 33-43 Avenue du Président Wilson, 75116 Paris, France.

6.

Costs – has the same meaning as in the Procedure.

7.

Disputed gTLD – disputed generic1 top level domain ".MAP".

8.

Expert or Expert Panel – has the same meaning as the Panel.

9.

gTLD – generic top level domain.

10. Guidebook – ICANN gTLD Applicant Guidebook (version 4 June 2012).
11. Objection – community objection to the Application submitted by the Objector to theCentre on 13 March 2013.
12. Objector – FairSearch.org, a company with its registered office at the Glover Park Group,1025 F St. NW, 9th Floor, Washington, DC 20004-1409, USA.
13. Objector's Additional Written Submission – "FairSearch.org's Written Submission
Replying to Charleston Road Registry's Response to FairSearch.org's Objection to
Charleston Road Registry's Application for the .MAP Generic Top-Level Domain Name"
submitted by the Objector to the Centre on 30 July 2013.
14. Panel – one member panel consisting of Mr Vladimir Khvalei, a partner of the Moscow
office of Baker & McKenzie – CIS, Ltd. with the office's registered address at 9 Lesnaya
Street, Moscow 125047, Russia.
15. Parties – the Applicant and the Objector when they are collectively referred to.
1

Usage of the word "generic" for the purpose of this definition is without prejudice to the Parties' positions on whether the".MAP" top level domain is generic or not.

4

16. Party – any of the Parties.
17. Procedure – the New gTLD Dispute Resolution Procedure, which is an Attachment toModule 3 of the Guidebook.
18. Registry Agreement – a draft agreement between ICANN and a successful applicant for a
new gTLD (in terms of the Registry Agreement – "Registry Operator") which is attached toand is a part of the Guidebook.
19. Response – response to the Objection submitted by the Applicant to the Centre on 14 May
2013.
20. Rules – the ICC Rules for Expertise as in force from 1 January 2003.
21. ToR – Terms of Reference dated 19 July 2013 introduced by the Panel via procedural orderNo. 1 and sent out to the Parties by e-mail dated 19 July 2013 at 10:20 p.m. (Moscow time).
II.

THE PARTIES

22. The Objector, FairSearch.org, has its registered office at the Glover Park Group, 1025 F St.
NW, 9th Floor, Washington, DC 20004-1409, USA. The Objector is represented in this caseby Mr Ben Hammer. Names and addresses for communications are set out in para. 27 below.
23. The Applicant, Charleston Road Registry Inc., has its registered office at 1600 Amphitheatre
Parkway, Mountain View 94043, California, USA. The Applicant is represented in this caseby Ms Sarah Falvey and Mr Brian Winterfeldt. Names and addresses for communications
are set out in para. 28 below.
III.

DISPUTE RESOLUTION SERVICE PROVIDER

24. As per Article 1(c) and 4(b)(iv) of the Procedure, the Dispute Resolution Service Provider isthe Centre. The address of the Centre is as follows:
ICC International Centre for Expertise33-43 Avenue du Président Wilson
75116 Paris, France
E-mail: expertise@iccwbo.org
IV.

EXPERT PANEL

25. As per Article 13(b)(iv) of the Procedure, these proceedings, as concerning a community
objection, shall involve the participation of a one member Panel.
26. The Chairman of the Standing Committee of the Centre appointed the following person as
Expert:Mr Vladimir Khvalei
Partner5Baker & McKenzie
9 Lesnaya Street
Moscow 125047, Russia
Phone: +7 495 787 27 00
E-mail: Vladimir.Khvalei@bakermckenzie.com
V.

COUNSEL TO THE PARTIES, COMMUNICATIONS

27. Communications to the Objector shall be sent to the following address:
Mr Ben Hammer
FairSearch.org
The Glover Park Group1025 F St. NW, 9th Floor
Washington, DC 20004-1409, USA
Phone: +1 202 337 0808
E-mail addresses :bhammer@gpgdc.com andgtld@gloverparkgroup.com
28. Communications to the Applicant and its representatives should be sent to the following
address:
Ms Sarah Falvey
Charleston Road Registry Inc.
1600 Amphitheatre Parkway
Mountain View, CA 94043, USA
Phone: +1 202 346 1230
E-mail: tas-contact7@google.com
The Applicant's representatives:
Ms Sarah Falvey
Google Inc.
1011 New York Ave, Second Floor
Washington, DC 20005, USA
Phone: +1 202 346 1230
E-mail: sarahfalvey@google.com
andMr Brian Winterfeldt
Katten Muchin Rosenman LLP
2900 K Street NW, North Tower
Suite 200
Washington, DC 20007-5118, USA
Business Phone: +1 202 625 3562
Business Fax: +1 202 339 8244
E-mail addresses:

6brian.winterfeldt@kattenlaw.com andnewgtld@kattenlaw.com
29. Pursuant to Article 6(a) of the Procedure all communications by the Parties with the Centre
and the Expert were submitted electronically.
VI.

LANGUAGE

30. As per Article 5 of the Procedure, the language of all submissions and proceedings under
this Procedure is English language.

VII.

PROCEDURAL HISTORY

31. On 13 June 2012 the Applicant posted an Application for the Disputed gTLD (Application
No. 1-1417-46480).
32. On 13 March 2013, the Objector submitted to the Centre the Objection based on Article2(e)(iv) of the Procedure (i.e. the community objection).
33. The payment of a non-refundable filing fee of EUR 5,000 was effected by the Objector on
13 March 2013.
34. On 12 April 2013, ICANN published its Dispute Announcement pursuant to Article 10(a) of
the Procedure. The Centre also published information regarding the procedure on its website(Article 9(e) of the Procedure).
35. On 14 May 2013 the Applicant filed its Response. The Applicant's filing fee of EUR 5,000
was paid on 30 April 2013.
36. On 12 June 2013 the Chairman of the Standing Committee of the Centre appointed Vladimir
Khvalei as the Expert pursuant to Article 3(3) of Appendix I to the Rules, and the Centre
informed the Parties of this decision by its letter of 14 June 2013. By the same letter theCentre estimated the total Costs of the proceedings at EUR 58,600 and requested each Party
to make payment of EUR 53,600 within 10 days of the receipt of this letter.
37. On 24 June 2013 the Objector filed a request for extension of time limit for the payment of
the advance on costs. On 25 June 2013 the Objector submitted evidence of its advancepayment of the Costs.
38. Advance payment of the Costs effectuated by both the Objector and the Applicant wascredited to the ICC's bank account on 26 June 2013.
39. Following the Parties’ advance payment of Costs, the Centre confirmed the full constitutionof the Panel, and the file was transferred to the Expert on 11 July 2013.

7

40. On 16 July 2013, the Expert sent the Parties a draft ToR and gave them an opportunity toprovide comments on it by 19 July 2013.
41. By 19 July 2013 the Parties provided comments on the draft ToR.
42. On 19 July 2013, the Expert issued Procedural Order No. 1 approving the ToR. The ToR
provided for submission of one additional written statement by each of the Parties within thetimeframe established in Provisional Timetable attached to the ToR.
43. On 30 July 2013, the Objector filed its Additional Written Submission in accordance with
the Provisional Timetable adopted in the ToR.
44. On 13 August 2013, the Applicant filed its Additional Written Submission in accordancewith the Provisional Timetable adopted in the ToR.
45. On 14 August 2013 the Expert issued Procedural Order No. 2 declaring that no additional
submissions from the Parties would be allowed, unless the Panel decided otherwise, and that
the Panel was starting to prepare the Expert Determination.
46. On 21 August 2013, in accordance with Article 21(a) of the Procedure, the Expert requested
the Centre to provide an extension of the time to render the Expert Determination.
47. On 22 August 2013 the Centre allowed the request and granted an extension of the time forrendering the Expert Determination until 14 September 2013.
48. The Expert submitted the draft Expert Determination within the extended time limit grantedby the Centre.

VIII.

SUMMARY OF THE PARTIES' POSITIONS

49. In accordance with the Provisional Timetable (Annex A to the ToR), in addition to the
Objection and Response, each Party filed its Additional Written Submission. This summaryof each Party's position covers the arguments of that Party from all its submissions.
50. The Objector and the Applicant use the terms "the Applicant" and "Google" (the Applicant's
parent company) interchangeably.2 The Panel adopts the same approach.
51. The Objector provided a number of arguments related to the Applicant's applications forother gTLDs (".SEARCH" and ".FLY"). The Panel will not summarise these arguments
here, as they are not relevant to the Disputed gTLD. At the same time, the Panel takes into
account the fact that the Objector filed Objections with regard to the Applicant's applications
for other gTLDs.

2

See the Objection, para. 1 and the Response, para. 1.

8

1. Summary of the Objector's Position
52. The Objector is an entity representing the interests of a group of businesses andorganisations.3 Several of the Objector's members are members of the online mapping
industry. 4
53. The Objector states that it satisfies the standing requirements for filing a community
objection set forth in Section 3.2.2.4 of the Guidebook:

The Objector is an established institution with a sufficient level of global recognition,
length of time the Objector has been in existence, and public historical evidence of
its existence5; andThe Objector maintains an ongoing relationship with a clearly delineated communityof "[…] companies that operate online mapping services […]".6

54. The Objector argues that the Objection meets all four requirements of Section 3.5.4 of the
Guidebook for the reasons listed below.
55. According to the Objector, the online mapping community is a clearly delineatedcommunity which is globally distributed; has existed for as long as the Internet itself; andhas sufficient formal boundaries around it.7
56. A substantial opposition to the Application from the community is confirmed by the
Objection itself as several members of the Objector are members of online mapping industry
and by six supporting declarations from members of this industry.8
57. The Disputed gTLD string is strongly associated with the online mapping community
because two large mapping services – "Bing Maps" and "Here! Maps" by Nokia – areoperated by the Objector's members, and "[…] other mapping providers around the world
rely heavily on the "map" string to indicate to the public that their websites provide mapping
services."9 According to the Objector, consumers also associate the string "map" with online
mapping services.10
58. The online mapping community will be impaired by the Applicant's administering the
Disputed gTLD. The Objector raises six main arguments when arguing such detriment.
59. First, the community heavily relies on the Domain Name System for its activities as they
provide online mapping services and the Applicant will be able to unfairly view data passing
3

See the Objection, para. 3.
See the Objector's Additional Written Submission, para. 50.
5
See the Objector's Additional Written Submission, paras. 47-51.
6
See the Objector's Additional Written Submission, para. 53.
7
See id..
8
See the Objection, para. 13.
9
See the Objector's Additional Written Submission, para. 56.
10
See id.
4

9

through the Disputed gTLD, which will cause economic damage to the Applicant's
competitors.11
60. Second, the Applicant will be able to impose anti-competitive restrictions on the registrationof domains in the Disputed gTLD and favour its services and limit opportunities for its
competitors.12 These restrictions will harm the companies that will be subjected to the undue
scrutiny of their major competitor if they decide to apply for a domain in the DisputedgTLD. As a result, companies will refrain from applying and will lose the competitive
advantage of using a domain in the Disputed gTLD. 13
61. Third, the Applicant "[..] has the incentive and ability to exclude competitors [fromcompetition] by placing onerous restrictions on .MAP registrants."14
62. Fourth, there are no reliable safeguards to prevent abuse of the Applicant's control over the
Disputed gTLD.15
63. Fifth, as a result of suppressed competition, the "[t]he consumers may never see a vibrantecosystem of vertical search and mobile competitors […]".16
64. Finally, as the Registry Agreement to be concluded between ICANN and the Applicant(should the Application be approved) permits "[…] unlimited automatic renewal in ten-year
terms […],"17 other members of the mapping industry will not be able to apply for the
Disputed gTLD, so the harm caused by the Applicant's administration of the Disputed gTLD
will be continued without limitation.18
65. In addition to the requirements for dismissal of the Application set by ICANN in Section
3.5.4 of the Guidebook, the Objector argues that the Applicant does not meet the criteria for
applicants set forth in the Guidebook. According to Section 1.2.1 of the Guidebook, ICANN
conducts a "background screening" of the Applicants and if it finds certain past activity of
the Applicant (e.g. convictions of certain crimes, decisions against the Applicant) then therelevant application should be automatically dismissed. The Objector states that the
Applicant's past activity calls into question the Applicant's fitness to serve as a gTLD
operator.19
66. In addition to the above arguments, the Objector states that the Panel should apply relevantinternational trademark and competition law principles to decide on the merits of the
Objection because granting the Applicant authority to control a common generic term andthe ability to directly harm competition will violate a number of trademark and competition
norms.
11

See the Objector's Additional Written Submission, para. 57.
See the Objection, paras. 28-32.
13
See the Objector's Additional Written Submission, para. 58.
14
See the Objector's Additional Written Submission, para. 59.
15
See the Objector's Additional Written Submission, para. 60.
16
See the Objection, para. 33.
17
See the Objection, para. 34.
18
See id.
19
See the Objector's Additional Written Submission, paras. 10-14.
12

10

67. Thus, the Objector argues that domain names are considered as source indicators under
trademark law principles.20 The Disputed gTLD string is a common generic term as was
confirmed by the advice21 of the Governmental Advisory Counsel22 dated 11 April 2013.23
68. International law does not allow exclusive ownership of common generic terms.24 Control
over a closed gTLD by a single industry player is contrary to the stated goals and polices of
ICANN such as promotion of competition in the registration of domain names.25
69. According to the Objector, the Applicant dominates the online mapping market and theApplicant should not be allowed to strengthen its dominant position through administrationof the Disputed gTLD.26
70. The Objector argues that taking into account past anticompetitive conduct of the Applicant,supported by competition investigations and decisions against the Applicant, it has anincentive to operate the Disputed gTLD to harm competition. According to the Objector, theApplicant once more proved its disregard for the rules and its competitors when it submitted
amendments to the application for other gTLDs after the Objection period was over, while
the Guidebook does not provide such an opportunity.
71. As to the issue of Costs, the Objector argues that it did not violate the Procedure, and the lateadvance payment was accepted by the Centre, the late payment of an advance does not affectvalidity of the Objection.
72. Regarding the issue of publication of the Expert Determination, in an e-mail dated 19 July
2013 the Objector asked the Panel to publish the Expert Determination in full on the Centre's
website.
2. Summary of the Applicant's Position
73. The Applicant requests that the Objection be dismissed.27
74. According to the Applicant, the Objector does not satisfy the requirements set forth in
Section 3.2.2.4 of the Guidebook for filing the Objection for six major reasons.
75. First, the Objector does not have standing to meet the "pre-existing and organizedcommunity" criteria, because under Section 4.2.3 of the Guidebook only an organization thatshowed activity prior to September 2007 can claim to represent a community. Furthermore,

20

See the Objection, paras. 39-41.
See https://gacweb.icann.org/display/GACADV/2013-04-11-Safeguards-Categories-2
22
The Governmental Advisory Counsel is an advisory body established to consult and express the position of different states to
ICANN regarding questions related to administration of the Internet.
23
See the Objection, paras. 14-16 and the Objector's Additional Written Submission, paras. 19-21.
24
See the Objection, para. 35-38.
25
See the Objection, paras. 42-47.
26
See the Objector's Additional Written Submission, paras. 27-30.
27
See the Response, para. 43.
21

11

such organization must be dedicated to that community.28 The Objector was not conducting
activities in 2007, neither is it dedicated to the search, travel or mapping communities.29
76. Second, the Objector is "[…] a biased coalition whose primary goal is impeding Google's
business practices."30 and no consumers or consumer groups are members of the Objector.31
77. Third, the existence of a global coalition of the Objector's supporters is deceptive since halfof the six companies which comprise this coalition are already members of the Objector,
while the other three companies are suing Google, and therefore cannot be deemed as
impartial industry commentators.32
78. Fourth, the Objector did not prove any ongoing relationship with the community, as"[e]very example FairSearch provides of interacting with an "online mapping services
community" occurred after FairSearch first filed notice of this Objection on 13 March
2013."3379. Fifth, the Objector claims to represent three communities related to different gTLDs: theDisputed gTLD, ".SEARCH", ".FLY". The Applicant asserts that the Objector cannot
legitimately represent all three of these communities since they can have potentiallydivergent interests.34
80. Sixth, the Applicant argues that there is no clear delineated community as required by the
Section 3.2.2.4 of the Guidebook. "The alleged mapping community lacks any local or
global cohesion or formal boundaries, and no accurate determination can be made withrespect to age, global distribution, or number of entities comprising the alleged
community."35
81. Also, the Objection does not satisfy the requisite criteria set forth in Section 3.5.4 of the
Guidebook for the following reasons:
82. First, the Objector did not prove the existence of a clearly delineated community that it
represents.36
83. Second, there is no substantial opposition within the alleged community. The Objection ofmembers of the Objector and three other companies do not constitute sufficient opposition to
the Application as there is a large number of companies which operate in the online mapping
industry and did not express any opposition to the Application.37

28

See the Response, para. 4.
Id.
30
See the Response, para. 5.
31
See the Response, para. 6.
32
See the Response, paras. 7-8.
33
See the Applicant's Additional Written Submission, p. 7.
34
See id.
35
Id.
36
See id.
37
See the Applicant's Additional Written Submission, p. 8.
29

12

84. Third, the Objector did not provide evidence that there is a strong association between the
Disputed gTLD string and the community.38
85. Fourth, there is no likelihood of material detriment to the community. The Applicant will
not have access to the data which is transferred to or from internet services with domainnames in the Disputed gTLD. "The Registry Operator merely provides such services as – inlayman's terms – telling a user's Internet Browser where to find the global servers that power
google.com, yahoo.com, microsoft.com, etc."39
86. The Applicant should not give advantages to particular registrars, as under Specification 11of the Registry Agreement the Applicant undertook an obligation to "[…] operate the TLD
in a transparent manner consistent with the general principles of openness and nondiscrimination by establishing, publishing and adhering to clear registration polices."40 If the
Applicant breaches this obligation then affected parties and ICANN can resort toenforcement mechanisms provided by the Registry Agreement.41
87. The Objector's concerns about restricted access for second level domain registration in the
Disputed gTLD are not founded because as of today there is a number of acting top leveldomains with restricted registration polices and most of them promote trust to the sites
registered within them.42 Moreover, the Objector's concerns related to second level domain
registration in the Disputed gTLD are not germane since the Applicant applied for the
Disputed gTLD not with a closed but with a restricted registration policy.43
88. Granting the Applicant administration of the Disputed gTLD will not force its competitors toregister domain names there since they have a number of alternative gTLDs and "[m]apping
services are currently flourishing on the Internet without a dedicated TLD."44
89. If the Disputed gTLD is managed by the Applicant, there will be no harm to consumers. The
Internet is fundamentally open and consumers can visit any site either through a searchengine or directly. Granting the Application will not hinder the openness of the Internet.45
90. The automatic renewal of the Registry Agreement cannot be considered as causing any harm
as it is a part of the new gTLD program and could not have been influenced by the
Applicant. Raising this argument by the Objector calls into question the whole procedure
and, if granted, will deny all applicants the opportunity to manage new gTLDs they appliedfor.4638

See id.
See the Applicant's Additional Written Submission, p. 11.
40
Specification 11 to the Registry Agreement as provided by the Applicant in Annex 34 to the Applicant's Additional Written
Submission.
41
See the Applicant's Additional Written Submission, p. 9.
42
See the Response, paras. 25-27.
43
See the Response, para. 42.
44
See the Applicant's Additional Written Submission, p. 9.
45
See the Response, paras. 29-31.
46
See the Response, para. 33.
39

13

91. The Applicant argues that issues of trademark and competition law are irrelevant to theproceedings. The Disputed gTLD string is not a generic term and generic terms in generalcannot be easily defined.47 Moreover, top level domains are not considered as "source
indicators" under trademark law.48
92. Regardless of whether the Disputed gTLD string is a generic term, the Applicant will notreceive control over a generic term. The Applicant will not be an exclusive registrant of the
Disputed gTLD. Every person that satisfies certain open criteria will be able to register adomain name in the Disputed gTLD.49
93. The Applicant is not a monopolist in search or search advertising. The Applicant has anumber of competitors in the search and advertising markets.50 The Applicant is not a
gatekeeper to the Internet.51
94. Administration of the Disputed gTLD does not convey a competitive advantage to theApplicant. The Applicant will not be able to harm competition or its competitors byadministering the Disputed gTLD. Instead, in order to promote raise awareness of the
Disputed gTLD and overcome users' initial mistrust of a new gTLD the Applicant will haveto make significant investments.52 The Applicant states that it will not favour its gTLDs insearch results.53
95. Since "[…] almost all of today's gTLDs […] offer identical technical and functional models,
which have not changed dramatically in almost 30 years […],"54 granting the Applicationand similar applications will only increase competition in the Internet as it may lead tocreation of new business models used by registries and cause competition for registrants.55
96. As to the issue of Costs, the Applicant argued that the Objector did not comply with therequirement to make the advance payment within 10 days of the request of the Centre. Also
the Objector did not send a copy of its request for extension of the payment period to theApplicant.56
97. Regarding the issue of publication of the Expert Determination, in the e-mail dated 18 July
2013 (Eastern time) the Applicant requested the Panel to decide that the Expert
Determination shall not be published on the Centre's website.

47

See the Response, paras. 13-16.
See the Response, paras. 35-37.
49
See the Applicant's Additional Written Submission, p. 11.
50
See the Response, paras. 17-21.
51
See the Response, paras. 22-23.
52
See the Response, paras. 24-28.
53
See the Response, para. 32.
54
See the Response, para. 39.
55
See the Response, paras. 40-41.
56
See the Applicant's Additional Written Submission, p. 5.
48

14

IX.
1.

FINDINGS
Issues to Be Determined

98. The mission of the Expert in this dispute is to determine whether the Objection should
prevail or be dismissed.
99. In order to resolve this dispute, the Expert in the ToR, after considering the Parties'
arguments, preliminarily identified the following issues to be determined:
1) Legal rules applicable to this dispute;2) Timeline of the payments by the parties to ICC and its impact on validity of the
Objection;3) Whether the arguments (other than related to the points listed in Section 23(4) of the
ToR – or Section IX(5) of this Expert Determination) raised in the Objection are
admissible in the current proceedings? If yes, then:a. What are the criteria for assigning a new gTLD?
b. Whether pre-requisites (if any) for assigning of the .MAP string were met? If yes,
then:i. Does international commercial law and/or national laws applicable to thecase (with references to particular provisions) allow exclusive ownershipor control of common generic terms?
ii. Is the .MAP string a common generic term?
iii. Does the Applicant have a dominant position which prevents it fromregistering the .MAP string on its name?
4) Whether the Objector meets the test established by the Section 3.2.2.4. of the
Guidebook:a. the Objector is an established institution; andb. there is an ongoing relationship with a clearly delineated community.
5) Whether the Objection meets the following test (Section 3.5.4. of the Guidebook):a. the community invoked by the Objector is a clearly delineated community;b. there is a substantial opposition from the community to the Application;

15

c. there is a strong association between the community invoked by the Objector andthe .MAP string; andd. there is a likelihood of material detriment to the rights or legitimate interests of asignificant portion of the community to which the .MAP string may be explicitly
or implicitly targeted.

2.

Legal Rules Applicable to This Dispute

100.The procedure of application for new gTLDs is extensively governed by the Guidebook.
101.The dispute resolution procedure regarding disputes related to new gTLDs is governed by
the Procedure, which is an attachment to Module 3 of the Guidebook.
102.Subject to Article 1(c) of the Procedure, it is supplemented by the Rules which are, in turn,supplemented by the Centre with the ICC Practice Note on the Administration of Cases
under the New gTLD Dispute Resolution Procedure, as well as with Appendix III to theRules – Schedule of Expertise Costs for Proceedings under the New gTLD Dispute
Resolution Procedure.
103.According to Article 4(c) of the Procedure, in the event of any discrepancy between theProcedure and the Rules, the Procedure shall prevail.
104.At the same time, under Article 20(a) of the Procedure, the Panel shall apply the standards
that have been defined by ICANN. Under Article Article 20(b) of the Procedure, the Panel
may base its findings on any rules or principles that it determines to be applicable.
105.No rules of particular national substantive law were invoked by the Parties or found by the
Panel to be applicable to resolve this dispute, as this dispute is to be resolved mainly on thebasis of the provisions referred above.
106.The Objector stated that "[i]n general, competition and trademark law principles and norms
should inform the Panel's Expert Determination,"57 as "[…] international competition andtrademark norms may serve as a persuasive authority in assessing whether assigning
the .MAP gTLD to the Applicant is likely to create competitive harm."58
107.The Panel agrees with the Objector that international competition and trademark principles
and norms may be generally applicable to this dispute, as well as any other generally
recognized international principles and norms. However, application of concrete principles
and norms (if any) to the current dispute shall be examined when analysing particulararguments raised by the Parties.

57
58

See the Objector's Additional Written Submission, p. 3.
Id.

16

3.

Timeline of the Payments by the Parties to ICC and Its Impact on Validity of the
Objection

108.Under Article 14(b) of the Procedure, "[e]ach party shall make its advance payment of Costs
within ten (10) days of receiving the DRSP’s [Dispute Resolution Service Provider’s]request for payment and submit to the DRSP evidence of such payment."
109.By its letter of 14 June 2013 the Centre informed the Parties that ICC estimated the total
Costs for these proceedings at EUR 58,600, subject to later readjustments, and requested
each Party to make a payment of EUR 53,600 (EUR 58,600 – EUR 5,000 filing fee alreadypaid by each Party) within 10 days of receipt of this letter. The letter was forwarded to theParties on the same day.
110.On 24 June 2013, i.e. within the original time limit provided for by the Centre, the Objector
filed a request for extension of the time for payment of the Costs.
111.On 25 June 2013 the Objector submitted evidence of its advance payment of the Costs.
112.Advance payment of the Costs effectuated by both the Objector and the Applicant wascredited to ICC's bank account on 26 June 2013.
113.By its letter of 28 June 2013, the Objector explained the reasons for payment of the Costs on
25 June 2013, which are basically the need for time to accumulate the funds necessary for
payment of the Costs for .MAP, .SEARCH and .FLY string Objections.
114.The Applicant by the e-mail of Mr. Winterfeldt of 4 July 2013 requested the Centre to deny
the Objector's request for extension of the time for payment of the Costs mainly because, heargued, there were no exceptional circumstances justifying such extension.
115.The Applicant argued that the Objector did not comply with the requirement to make theadvance payment within 10 days of the request of the Centre. Also the Objector did not senda copy of its request for extension of the payment period to the Applicant.59 Therefore,
according to the Applicant, the Objection should be dismissed on this ground.
116.The issue of whether the Costs were paid in a timely fashion was resolved by the Centre inits letter of 11 July 2013 where it concluded that the estimated Costs had been paid in full byeach Party and proceeded with the transfer of the file to the Panel.
117.Therefore, the Panel does not have authority to revise this decision, as under Article 14 of
the Procedure it is the Centre and not the Panel that may decide on Cost-related issues. The
scope of the Panel's mandate is defined in Section 3.5.4 of the Guidebook and does notinclude rulings on administrative decisions taken by the Centre.
118.The Panel also takes into account the Resolution of the New gTLD Program Committee
dated 13 June 2013 (2013.07.13.NG04). According to this resolution, "[…] in the interests
59

See the Applicant's Additional Written Submission, p. 5.

17

of fairness and reasonableness, notwithstanding the deadlines set out in the Guidebook, inthe future the DRSPs are permitted and encouraged to use their discretion, in light of thefacts and circumstances of each matter, and in cases where it is shown that the affected party
is making a good faith effort to comply with the deadlines, as to whether to grant extensions
or deviate from the deadlines set forth in the Applicant Guidebook."60
119.This Resolution confirms the authority of the Centre to decide on Cost-related issues, and inparticular to grant extensions to the deadlines set forth in the Guidebook. As alreadymentioned, the scope of the Panel's mandate is defined in Section 3.5.4 of the Guidebook
and does not include rulings on administrative decisions taken by the Centre.
120.Consequently, the Panel finds itself incompetent to decide on issues related to the latepayment of Costs.
4.
Whether the Arguments (Other Than Those Related to the Points Listed in Sections
IX(5) and IX(6) of this Expert Determination) Raised in the Objection are Admissible in
the Current Proceedings ?
121.The Objector asserted that there existed questions as to whether the Applicant met thecriteria for assignment of the Disputed gTLD.61 The Objector cites several decisions against
the Applicant and argues that the Applicant may be unfit to serve as an operator of the
Disputed gTLD.
122.According to Section 1.2.1 of the Guidebook, "[i]n absence of exceptional circumstances,application from any entity with or including any individual with convictions or decisions of
the types listed in (a) – (m) below will be automatically disqualified from the program." The
Objector referred to several points of the list arguing that the decisions against the Applicant
cited by the Objector were covered by those points.
123.However, the Panel finds itself incompetent to disqualify the Application on these grounds.
124.First, subject to Section 1.2.1 of the Guidebook, ICANN checks whether there are grounds
for automatic dismissal of the Application during background screening. Backgroundscreening is a part of the eligibility verification in the early stages of the application
procedure which is conducted by ICANN.
125.Therefore, according to the Guidebook, only ICANN and not the Panel is competent todisqualify the Application on these grounds and as the Application was allowed to proceed,
the Panel cannot revise this decision of ICANN.
126.Second, Article 20 of the Procedure and Section 3.5.4 of the Guidebook define the scope ofthe community objection procedure, which is limited to determination of whether the
Objection meets the requirements of the standards developed by ICANN. Eligibility of the

60
61

http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-13jul13-en.htm
See the Objector's Additional Written Submission, paras. 10-14.

18

Applicant to get a new gTLD is not to be considered during the community objection
procedure.
127.Consequently, the Panel finds that the issue whether the Application can be disqualified on
the basis of Section 1.2.1 of the Guidebook is outside of the scope of the community
objection procedure and competence of the Panel.
128.Because of this finding the Panel does not need to analyse the issues:a. What are the criteria for assigning a new gTLD?
b. Whether pre-requisites (if any) for assigning of the .MAP string were met? In
particular:
i. Does international commercial law and/or national laws applicable to thecase (with references to particular provisions) allow exclusive ownershipor control of common generic terms?
ii. Is the .MAP string a common generic term?
iii. Does the Applicant have a dominant position which prevents it fromregistering the .MAP string on its name?

5.

Whether the Objector Meets the Test of Section 3.2.2.4 of the Guidebook

129.According to Section 3.2.2.4 of the Guidebook, these are established institutions associatedwith clearly delineated communities that are eligible to file a community objection. To
qualify for standing for a community objection, the Objector must prove both of thefollowing:
A. It is an established institution; and
B. It has an ongoing relationship with a clearly delineated community.
A.

Whether the Objector Is an Established Institution

130.ICANN prepared a list of factors which can be used by the Panel to determine whether the
Objector meets the criteria of "established institution":
i.

"level of global recognition of the institution;ii.

length of time the institution has been in existence; andiii.

public historical evidence of its existence, such as the presence of a formal charter or
national or international registration, or validation by a government, inter-governmental

19

organization, or treaty. The institution must not have been established solely in
conjunction with the gTLD application process."62i. Level of Global Recognition of the Institution

131.The Objector claimed that it met these criteria. In particular, the Objector stated that it had alevel of global recognition because (a) it had engaged with a number of government
agencies and international organizations in the world, (b) more than 1,600 individuals had
signed up for its newsletter, (c) international nature of its activities, as such activities wereconnected with the Internet, and (d) multinational nature of its members that employed morethan one hundred thousand people worldwide.63
132.The Applicant, in its turn, stated that the Objector is "a biased coalition whose primary goal
[was] impeding Google's business practices"64 and that no consumers or consumer groups
were members of the Objector.
133.It is undisputable that the Objector's members include well-known and respected global
companies. At the same time, the Objector is not the same as its members. The Objector as
an institution does not have similar recognition as its members do. Obviously, it has received
a certain level of recognition since its establishment, but in view of the Panel this level is notenough to be considered as a global recognition as required by the Procedure.
134.From the evidence submitted it follows that the Objector is more concentrated on pursuing
Google for its alleged misconduct than acting for the mapping community (should such
community exist).
135.The Objector filed the Objection with regard to the Application made by the Applicant only.
At the same time the Objector did not object against other applications for the Disputed
gTLD.
136.Thus, Amazon EU S.a.r.l. applied to operate the Disputed gTLD as a closed registry.
Assigning the Disputed gTLD in such situation could be more detrimental to the interest of
the mapping community and should have compelled the Objector to bring an Objection.
However, the Objector did not make any Objection to this application.
137.Further, the number of individual subscribers to the Objector's newsletter is clearly notenough to make it a global institution (as required by the Procedure).
138.Equally, it does not follow from the submissions that "engagement" with government
agencies and international organizations reached the level when the Objector received
recognition from those entities with regard to the Disputed gTLD.

62

The Guidebook, Section 3.2.2.4.
See the Objection, paras. 8-13.
64
See the Response, para. 5.
63

20

139.Moreover, even in the view of the Objector itself, it "has established a reputation as a highly
regarded voice for Internet search community […]"65 (emphasis added). Therefore, even the
Objector itself considers itself as a voice for the Internet search and not mapping
community.
140.Taking into account all arguments and evidence provided by the Parties, the Panel finds that
the Objector did not provide sufficient evidence to establish its global recognition withregard to the Disputed gTLD as required by the Procedure.
ii. Length of Time the Institution Has Been in Existence

141.The Objector was formed in October 2010.66
142.The Applicant claimed that in order to determine whether the Objector met the "time inexistence" criteria, the Panel should apply the criteria set forth for the Community Priority
Evaluation procedure under Section 4.2.3 of the Guidebook which defined a "pre-existing"community as a community active before the new gTLD policy recommendations werecompleted in September 2007. 67
143.The Objector, in its turn, argued that Section 4.2.3 of the Guidebook "[did] not apply toinstitutions objecting to gTLD applications."68
144.The Panel agrees with the Objector and finds that the criteria from Section 4.2.3 of the
Guidebook cannot be applied so as to deprive a party established after September 2007 of
the right to file the Objection if it represents the community established before this date.
145.First, it is clear from the wording of the Section 4.2.3 of the Guidebook that these criteria
apply to communities, and not to objectors.
146.Second, the purpose of Section 4.2.3 is to review and score community-based applications inorder to find out which community-based application has priority for a particular gTLD. The
criteria mentioned in Section 4.2.3 are to determine which of the communities that applied
for the same gTLD string is better suited to administer it. Section 4.2.3 does not have thepurpose of characterizing the objectors.
147.Third, application of the "pre-existing" criteria in the manner proposed by the Applicant to
the institutions filing community objections will deprive all institutions established after65

See the Objection, para. 8.
See the Objection, para. 7.
67
See para. 4 of the Response which reads as follows:"As FairSearch was only founded in October 2010, they have no standing to meet reasonable criteria for representing a“pre-existing and organized” community. ICANN’s own criteria in Section 4.2.3 of the AGB for establishment as a“pre-existing” organization that can claim representation of a community asks that the entity show activity within thecommunity prior to the gTLD policy recommendations completed in September 2007. To be “organized”, implies that
there are entities mainly dedicated to the community, with documented evidence of community activities. Since
FairSearch was not conducting activities in 2007, nor is it dedicated solely to the search, travel or mapping
communities, it does not merit being recognized as a representative of these communities, or .MAP in particular."68
See the Objector's Additional Written Submission, para. 48.
66

21

September 2007 of the right to file a community objection. This does not conform with thegoals and nature of ICANN's work in general and community objection procedure inparticular.
148.At this point in time the Objector has been active for almost three years. Taking into accountthe rapidity of Internet development, the Panel finds that this period is formally enough tosatisfy the "time in existence" criteria.
iii. Public Historical Evidence of the Institution's Existence

149.It seems to the Panel that this criteria was mentioned in order to establish whether the
Objector was not created with the sole or the main purpose of filing Objection.
150.While the Objector did not provide a formal charter or any other instrument by which it was
created (such as national or international registration, or validation by a government, intergovernmental organization, or treaty), on the basis of evidence presented the Panel did notcome to the conclusion that the Objector was established with the sole or main purpose of
making the Objection.
151.Notwithstanding that the Objector met criteria of "length of time" and "public historicalevidence of its existence", it still does not meet the level of public recognition required by
the Procedure. Therefore, the Panel finds that the Objector does not meet the standing
requirement of being an established institution.
B.

Whether There Is an Ongoing Relationship with a Clearly Delineated Community

152.After the Panel came to the conclusion that the Objector did not meet criteria for"established institution," there is no need to analyse other issues, as this conclusion alone issufficient to dismiss the Objection. Nevertheless, for the sake of good order , the Panel will
analyse other issues raised by the Parties which are relevant to the Objection.
153.Section 3.2.2.4 of the Guidebook suggests the Panel use the following non-binding list offactors when determining whether there is an ongoing relationship with a clearly delineatedcommunity:i.

the presence of mechanisms for participation in activities, membership, and leadership;ii.

institutional purpose related to benefit of the associated community;iii.

performance of regular activities that benefit the associated community; andiv.

the level of formal boundaries around the community.69

69

See Section 3.2.2.4 of the Guidebook.

22

154.Based on materials provided by the Parties, the Panel finds that the Objector did not provide
sufficient evidence to prove that it has an ongoing relationship with a clearly delineatedcommunity.
i. The Presence of Mechanisms for Participation in Activities, Membership, and Leadership

155.The Objector plainly stated that it "ha[d] a presence of mechanisms for participation in
activities, membership and leadership"70 without provision of any evidence of suchmechanisms.
156.The Panel does not consider this statement itself a sufficient proof of the existence of themechanisms in question and therefore is not convinced that such mechanisms indeed exist.
ii. Institutional Purpose Related to Benefit of the Associated Community

157.As follows from the Objector's submissions, the purpose of the Objector is "to promoteeconomic growth, innovation and choice across the Internet ecosystem by fostering anddefending competition in online and mobile search."71
158.The Objector stated that this purpose was related to the benefit of the Internet searchcommunity.72
159.The Applicant, in its turn, argued that the Objector was a "biased coalition whose primary
goal [wa]s impeding Google's business practice."73 It went further and stated that "[…] the
only identified goal on [the Objector's] website – [was] to allege that 'Google is abusing its
search monopoly.'"74
160.As has been mentioned above, the Panel finds that the Objector is mainly concentrating on
pursuing Google rather than presenting interests of the mapping community (should such
community exist).75
161.Besides, the Objector also failed to prove that it has any institutional purpose beneficial forthe alleged mapping community. Moreover, the Objector itself mentions the Internet searchcommunity, and not the mapping community, for the benefit of which it has an institutional
purpose.
162.Based on the above, the Panel finds that the Objector does not meet the institutional purpose
criterion.

70

See the Objection, para. 12.
See the Objection, para. 3.
72
See the Objection, para. 12.
73
See the Response, paras.3-5.
74
See the Applicant's Additional Written Submission, p. 7.
75
See Annexes 2-7 to the Response.
71

23

iii. Performance of Regular Activities that Benefit the Associated Community

163.The Objector gave a number of references to its website where it advocated for its members
and other mapping companies with concerns about Google's dominance in online mapping
services.76 Most of these examples are related to making competition complaints against
Google.
164.The Applicant denied the alleged relationship with the community and stated, in particular,that "[e]very example [the Objector] provides of interacting with an "online mapping
services community" occurred after [the Objector] first filed notice of this Objection on 13
March 2013."77
165.Indeed, as follows from evidence, there is only one reference provided by the Objector thatis dated before the Objection was filed on 13 March 2013. This is not enough to find that the
Objector performs regular activities that benefit the associated community or has any
ongoing relationships with the community.
166.Moreover, leaving aside the question of whether these activities are beneficial, the question
remains open as to whether these activities relate to the alleged mapping, and not the searchcommunity. The Panel believes that the Objector has not proven this.
167.Therefore, the criterion of performance of regular activities that benefit the associatedcommunity has not been satisfied.
iv. The Level of Formal Boundaries Around the Community

168.The question of whether the Objector proved the existence of a clearly delineatedcommunity and, therefore, whether there are formal boundaries around the community will
be analysed in more detail in Section IX(6)(A) of this Expert Determination below (seeparas. 185-189) .
169.In addition to these factors, the Objector claims to represent three distinct communities,
related to three different top level domains: the Disputed gTLD, and also the .search and .fly
domains.78
170.The Applicant raised certain doubts whether the Objector can legitimately represent three
distinct communities simultaneously, as the interests of these three communities (shouldsuch communities exist) are potentially divergent.79
171.The Panel does not find impossible, in theory, that one objector could represent threedifferent communities, especially when the purpose of establishing the objector was toprotect interests of these communities.
76

See the Objector's Additional Written Submission, para. 50, footnotes 82, 92.
See the Applicant's Additional Written Submission, p. 7.
78
See the Objection, para. 6.
79
See the Applicant's Additional Written Submission, p. 7.
7724

172.At the same time the Objector failed to provide sufficient evidence that the alleged
community interested in the Disputed gTLD exists and it is clearly delineated.
173.To summarize – the Objector failed to demonstrate, that:i. there are mechanisms for participation in activities, membership, and leadership of thecommunity interested in Disputed gTLD;
ii. its institutional purpose is related to benefit of the associated community;iii. there were regular activities that benefit the associated community; andiv. the community has a sufficient level of formal boundaries.80
6. Whether the Objection Meets the Test of Section 3.5.4 of the Guidebook
174. Subject to Section 3.5.4 of the Guidebook, the Objection must meet four tests in order tosucceed. The Objector must prove that:
A. The community invoked by the Objector is a clearly delineated community;
B. There is a substantial opposition from the community to the Application;
C. There is a strong association between the community invoked by the Objector and the
Disputed gTLD; andD. There is a likelihood of material detriment to the rights or legitimate interests of a significant
portion of the community to which the Disputed gTLD may be explicitly or implicitly
targeted.
175. Further the Panel will consider whether the Objection meets all four tests. If any of these tests is
not met, the Objection will be dismissed.
A.

Whether the Community Invoked by the Objector is a Clearly Delineated Community

176.The burden of proof that the community expressing opposition can be regarded as a clearlydelineated community to which the Disputed gTLD may be targeted rests with the Objector.
177. Section 3.5.4 of the Guidebook provides a non-binding and open list of factors for the Panelto consider in this regard:

80

i.

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

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

See Section 3.2.2.4 of the Guidebook.

25

iii.

the length of time the community has been in existence;iv.

the global distribution of the community (this may not apply if the community is
territorial); andv.

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

178.Having examined all arguments and evidence provided by the Objector and the Applicant,the Panel finds that the Objector failed to provide sufficient evidence that there exists a
clearly delineated community to which the Disputed gTLD may be targeted.
179.The Objector asserts that it represents the "online mapping community". It states, inparticular, that "only companies that operate online mapping services are considered to bepart of that community."81 However, for the reasons described below in more detail, thePanel is not convinced by such a definition of the community.
i. The Level of Public Recognition of the Group as a Community at a Local and/or Global
Level180. In its submissions the Objector provided no proof that companies that operate online
mapping services (i.e. allegedly constituting the mapping community) have received publicrecognition as a group at a local and/or global level. Instead, the Objector refers to its own
global recognition.82
181.In its turn, the Applicant argues that there is no such community, as "[…] there is diversity
and conflict of goals, and controversy or uncertainty as to what persons or entities are
considered to form the community […]."83
182.It is not disputed that the Objector has several companies engaged in the mapping businessamong its members. However, the Objector did not demonstrate that these companies
constitute a community in a general sense84, i.e. that they associated with the common
interest in their activity related to mapping services.
183.Nor was the Objector successful in showing that a publicly recognized "online mapping
community" exists at all – at any level, local or global. An example of such existence might
include an association with due representation of important entities engaged in map-related
businesses at the global and local level – along with "Bing Maps" and "Here! Maps" by
Nokia such as Yahoo Maps, MapQuest, AskCity, Yandex Maps, Naver Maps, etc. Such an
association, should it exist, might also include off-line mapping services, GPS navigation
services, etc.

81

See the Objector's Additional Written Submission, para. 53.
See the Objection, paras. 8-13.
83
The Applicant's Additional Written Submission, p. 7.
84Black's Law Dictionary (7th Ed.) defines "community" as follows: "… 3. A collection of common interests that arise from anassociation."
82

26

184.Apart from the Objector's member companies, there are many companies engaged in
mapping or mapping-related businesses (whether online or offline) on global and local
levels. However the Objector presented no proof that such companies formed a community
and that such community (even if formed) has received any significant public recognition.
ii. The Level of Formal Boundaries Around the Community and What Persons or Entities are
Considered to Form the Community

185.The Panel also has not been convinced that any formal boundaries around the alleged
community exist.
186.The Objector narrows the boundaries around the community to the "companies that operate
online mapping services."85 Unfortunately, the Objector does not go further in explaining
why only such companies should be considered as members of the community. For instance,
the Objector does not explain why companies doing business in offline mapping are not apart of the alleged community and thus should not constitute a part of such community.
Moreover, it is not clear whether the boundaries around the community embrace companies(or even individuals) engaged in businesses related to mapping (e.g., navigational,
geological, geodesic, tourism businesses, as well as hiking or sailing).
187.The Panel tends to agree with an analogy made by the Applicant between the alleged "online
mapping community" and “a community which encompasses members of different natureand interests86 – in both cases there is no clearly delineated community, as "[…]
stakeholders have varied and potentially competing goals."87
188.Therefore, the criteria based on which the Objector refers to the 'online mapping community'
as the community to which the Disputed gTLD may be targeted are not clear and have notbeen substantiated by the Objector in its submissions.
189.Therefore, the Objector has not demonstrated that there are any formal boundaries aroundthe alleged community.
iii. The Length of Time the Community Has Been in Existence

190.The Objector claims that the "online mapping community" has existed for almost as long as
the Internet itself.88
191.The Panel acknowledges that there have been a number of companies or individuals thathave been involved in the mapping business and/or related businesses for a number of years.
At the same time, the mere existence of such companies does not per se mean that acommunity emerged.

85

The Objector's Additional Written Submission, para. 53.
See the Applicant's Additional Written Submission, p. 7.
87
Id.
88
See the Objector's Additional Written Submission, para. 53.
86

27

192.As has already been mentioned, the Panel believes that the Objector did not prove thatexistence of several market players automatically constituted a "community" for the purposeof the Procedure to which the Disputed gTLD may be targeted.
iv. The Global Distribution of the Community

193.The Objector did not address this criterion directly.
194.At the same time, the Objector stated that it "[…] had assembled a global coalition ofsimilarly-interested organizations and companies who support this community objection."89
The Objector attached a compendium of declarations from the Objector's supporters in
Annex B to the Objections.
195.The Applicant, however, stated that among the six companies listed in the Annex B, three ofthem were already members of the Objector,90 while the remaining three were the European
mapping companies that were either suing Google or had filed complaints against Google
with the European Commission, and therefore these companies were not impartial industry
commentators.91
196.There is no doubt that companies or individuals that have been involved in the mapping
business and/or related businesses by the nature of their activities are widely distributed
around the world. It is disputed neither by the Applicant nor by the Objector. At the sametime, the Panel is not convinced that the "global coalition" mentioned by the Objector
represents the "online mapping community", the existence of which has been alleged by the
Objector.
197.Taking into account the absence of any formal structure between the companies and/or
individuals that might form a community related to the Disputed gTLD, as well as lack ofother characters of a community, it could be considered as a global activity rather then theexistence of a global community.
v. The Number of People or Entities that Make Up the Community

198.The Objector did not estimate the number of members in the alleged "online mapping
community", limiting itself to naming individual companies involved which provide some
sort of online mapping services.
199.The Applicant argued that "no accurate determination can be made with respect to age,
global distribution, or number of entities comprising alleged community."92
200.The Panel believes that indeed it is not possible to estimate with reasonable accuracy the
number of entities which constitute the alleged "online mapping community," as the89

See the Objection, para. 13.
See the Response, para. 7.
91
See the Response, para. 8
92
See the Applicant's Additional Written Submission, p. 7.
90

28

boundaries of such alleged community are not delineated and it is not clear what persons
and/or entities would form this community, should it exist.
201.As a result, the Panel concludes that the Objector did not provide grounds to consider the
alleged "online mapping community" as a clearly delineated community, which is necessary
for the Objection to be upheld.
B.

Whether there Is a Substantial Opposition from the Community to the Application

202.According to the Procedure the Objector must prove the existence of substantial opposition
from the community to the Application. Section 3.5.4 of the Guidebook provides a nonbinding and open list of factors for the Panel to consider in this regard:i.

Number of expressions of opposition relative to the composition of the community;ii.

The representative nature of entities expressing opposition;iii.

Level of recognized stature or weight among sources of opposition;

iv.

Distribution or diversity among sources of expressions of opposition;v.

Historical defence of the community in other contexts;

vi.

Costs incurred by the Objector in expressing opposition, including other channels the
Objector may have used to convey opposition.

203.Below the Panel will address each of these arguments in more detail.
i. Number of Expressions of Opposition Relative to the Composition of the Community

204.In order to establish that the Objection satisfies this criteria, the Objector must provide twopieces of information: number of expressions of opposition (approximation is allowed) andthe approximate number of community members. The Panel cannot assess the relationshipbetween the number of Objections voiced by community members and size of thecommunity without this information.
205.The Objector provided six declarations from its supporters which express their Objection to
the Application as proof of the number of opposition expressions93.
206.As the same time, as was pointed out by the Applicant, half of these six companies werealready members of the Objector94, thereby their opposition cannot by itself be considered
substantial. Moreover, there is no evidence that these Objections were provided elsewhere
except in the Objection.

93
94

See the Objection, Annex B.
See the Response, para. 7.

29207.Even if the Panel considers all six declarations as expressions of opposition to the DisputedgTLD within the community, the Panel cannot conclude that there is a sufficient number of
expressions of opposition relative to the composition of the community as the Objector did
not provide any estimates of the number of community members. Consequently, it is notpossible to compare number of expressions of Objection and size of the community on thebasis of the information submitted by the Objector.
208.The Applicant stated that the community connected with online mapping is comprised of abroad variety of mapping services95 and even six Objections from supposed members of thiscommunity do not amount to a sufficient number of expressions of Objection. The Paneltends to agree that number of members of mapping community could be substantial and only
6 Objections should not be considered as a view of significant part of the members ofmapping community.
209.The Objector has also provided a number of statements by governments, businessorganizations and commentators that oppose closed gTLDs.96 The Panel considers it
important that the Applicant does not intend to make a closed gTLD on the basis of the
Disputed gTLD. The Application stated that "[a]ll second-level domains in the .map gTLD
will be restricted to pointing to a verified map services provider."97
210.The Panel also finds the statements provided by the Objector are irrelevant to the community
opposition, as these statements were made by entities who should not be considered as
members of the alleged "online mapping community" (at least, there is no evidence that they
are members of the alleged mapping community).
211.The absence of a substantial number of community members opposing the Application is
also supported by the fact, mentioned by the Applicant98, that there are only 9 comments on
applications for the Disputed gTLD, including two comments on the Application, among
12,200 comments on ICANN's official new gTLD Comments Forum.99
ii. The Representative Nature of Entities Expressing Opposition

212.The Objector did not provide information about the companies that had issued declarations
supporting the Objection, which were contained in Annex B of the Objection, or informationon their connection with mapping services.
213. Consequently, in order to assess the representative nature of the companies which expressed
opposition against the Application, the Panel can only use information provided in the
declarations of these companies. Two of the companies (the Glover Park Group andFoundem) did not mention that they are connected with mapping services.

95

See the Response, para. 3.
See the Objection, paras. 48-54.
97
See the Application, Section 18.b.ii.1.
98
See the Applicant's Additional Written Submission, p. 8.
99
See https://gtldcomment.icann.org/applicationcomment/viewcomments
9630

214.Additionally, the Applicant pointed out that half of these six companies are already membersof the Objector (Microsoft, Foundem and the Glover Part Group). The other three companies(Hot Maps Medien GmbH, Streetmap.EU and Euro-Cities AG) have filed complaints
against Google with the European Commission and two of them (Hot Maps Medien GmbHand Streetmap.EU) are members of the "anti-Google group ICOMP."100
215.The Panel finds that a simple fact that some companies are member of the "anti-Google
group ICOMP" or filed complains against Google does not itself disqualify them for the
purpose of deciding representative nature of these entities.
216.However, in the absence of information regarding total number of members of the alleged
mapping community, the way it is structured, governed and conducts its activity, the Panelfinds that the Objector did not provide sufficient evidence to support the representative
nature of the entities expressing opposition.
iii. Level of Recognized Stature or Weight among Sources of Opposition

217.The information the Objector provided on the sources of opposition was limited to the
Objection and the six declarations attached to the Objection. The Objector did not show thatthese Objections were voiced anywhere else. Nor did the Objector show any proof which
would allow an evaluation of the stature or weight of the companies that made thesedeclarations.

iv. Distribution or Diversity among Sources of Expressions of Opposition

218.The Parties did not discuss separately the question of distribution or diversity among sourcesof expressions of opposition.
219.From available information the Panel concludes that distribution of opposition is limited tothe companies located in the United States and Europe, even though some of them operate
worldwide. No proof that companies operating in other parts of the world that might fall into
the alleged "mapping community" (should such community exist) were provided to the
Panel.
220.Under such circumstances and taking into account the doubts in objectiveness of the
opposing companies (see para. 214 above), the Panel is not in the position to conclude thatthe sources expressing opposition are diverse.
v. Historical Defence of the Community in Other Contexts

221.The Objector claimed that it advocated for competition in the online mapping market,
providing examples of its actions focusing on Google's alleged violations.101 The Objector
does not give examples of defending the alleged community in the other contexts.
100
101

See the Response, paras. 7-8.
See the Objector's Additional Written Submission, para. 55, footnote 92.

31222.The Applicant denied the alleged relationship with the community and stated that theexamples the Objector provides of interacting with an "online mapping services community"
occurred after the Objector filed the Objection on 13 March 2013.102
223.As mentioned in para. 165 above, only one reference provided by the Objector is dated
earlier than the filing date of the Objection (i.e., 13 March 2013).
224.As no further evidence of historical defence of the alleged community was provided by the
Objector, the Panel finds this criterion not satisfied by the Objector.
vi. Costs Incurred by the Objector in Expressing Opposition, Including Other Channels the
Objector May Have Used to Convey Opposition

225.While it is evident for the Panel that the Objector incurred a number of costs related toexpressing opposition against the Application and other relevant actions against the practices
of Google, the Objector did not provide any comments on their amounts, nature or relevanceto the Disputed gTLD.
226.In the absence of such information, the Panel finds that the Objection does not meet thiscriterion.
227.Taking into account all considered criteria, the Panel finds that the Objection does not showthat there is substantial opposition to the Application from the community.
C.

Whether There Is a Strong Association between the Community Invoked by the
Objector and the Disputed gTLD

228.For the Objection to be sustained, the Objector must prove that there is a strong association
between the community invoked by the Objector and the Disputed gTLD. Section 3.5.4 of
the Guidebook provides a non-binding and open list of factors for the Panel to consider inthis regard:Statements contained in the Application;

Other public statements by the Applicant;

Associations by the public.

229.The Objector argued that "[t]he online mapping community [wa]s strongly associated withthe "map" string […],"103 as two large mapping services are members of the Objector and"[…] online mapping providers around the world rely heavily on the "map" string to indicate
to the public that their websites provide mapping services."104102

See the Applicant's Additional Written Submission, p. 7.
See the Objector's Additional Submission, para. 56
104
Id.
103

32

230.The Applicant's argument was that "there [wa]s no evidence suggesting that consumers[would] see .MAP and assume that the gTLD relates to the limited community FairSearch
purports to represent."105
231.The Panel tends to agree with the Applicant's argument. Apart from the fact that the
Objector failed to prove the existence of a clearly delineated community, no proof was
submitted that the Disputed gTLD would be associated with the mapping services that are
members of the Objector (and support it) rather than with all other companies somehow
related to the mapping business (or even other associations in other languages).
D.
Whether There Is a Likelihood of Material Detriment to the Rights or Legitimate
Interests of a Significant Portion of the Community to Which the Disputed gTLD May Be
Explicitly or Implicitly Targeted

232.According to Section 3.5.4 of the Guidebook, in order to establish detriment the Objector
must prove that the Application creates a likelihood of material detriment to the rights orlegitimate interests of a significant portion of the community to which the Disputed gTLD
may be explicitly or implicitly targeted.
233.As described above, the Panel believes that no clearly delineated community to which the
Disputed gTLD may be targeted exists. However, even if for the purposes of this analysis
we assume that such a community exists, the Objector did not prove the likelihood ofmaterial detriment to the community.
234.The Objector asserted that if the Applicant was allowed to manage the Disputed gTLD, theApplicant would:i.

receive discretionary authority to hinder competition and cause harm to its competitors by
imposing restrictions in registration of second-level domains within the DisputedgTLD;106ii.

receive an opportunity to unfairly access "data passing though the .MAP gTLD;"107iii.

harm consumers of mapping and related services;108 andiv.

be able to administer the Disputed gTLD for indefinite period of time.109

235.Below the Panel addresses each of these arguments in more detail.

105

See the Applicant's Additional Submission, p. 8.
See the Objection, paras. 28-32.
107
See the Objector's Additional Written Submission, para. 57.
108
See the Objection, para. 33.
109
See the Objection, para. 34.
106

33

i. Alleged Restrictions in Registration of Second-Level Domains

236.For the purposes of this dispute the Panel considers it important that the Applicant does notintend to make a closed gTLD on the basis of the Disputed gTLD.
237.The Application stated that "[a]ll second-level domains in the .map gTLD will be restricted
to pointing to a verified map services provider."110
238.The Applicant expects that uses of the domain names in the disputed gTLD "may include
but are not limited to applications such as mapping and navigation services; running/hiking
trail maps; and weather mapping."111
239.The Applicant argued that the Objector's concerns about restricted gTLDs were unfounded,
as a larger number of gTLDs would cause competition between them, would possibly lead toemergence of new technical or commercial models used by gTLDs and would result indiversified user choice.112
240.The Objector, in its turn, stated that as a registry operator for the Disputed gTLD, theApplicant "reserve[d] broad discretion for itself to decide which competitors [we]re eligible
to be a part of the .map and .fly domains."113 The Objector argued that the Applicant had an
incentive to foreclose competition because, according to the Objector, there was a history ofactions by the Applicant which deliberately harmed competition.114
241.The Objector further stated that the Applicant "[…] frustrate[d] neutrally determined
processes […]" provided by the Guidebook by amending its application for ".SEARCH"
gTLD, while the Guidebook did not provide an opportunity for such amendment.115
According to the Objector, this fact "casts serious doubt as to whether Google is fit toregister the .MAP string."116
242.Going further, the Objector stated that "[i]rrespective of whether the Applicant would denycompetitors access to the .map or .fly second-level TLDs inappropriately or not, placingsuch an advantage in the hands of a significant rival w[ould] inhibit online competition"117.
243.The Objector also claimed that as a consequence of arbitrary restrictions which could be
imposed by the Applicant, all members of the community would be harmed, both those who
successfully registered their second-level domains within the Disputed gTLD and those who
did not, since the former would face undue and unrestricted scrutiny of the Applicant, while110

See the Application, Section 18.b.ii.1.
See the Application, Section 18.a.
112
See the Response, paras. 38-41.
113
See the Objection, para. 31.
114
See the Objector's Additional Written Submission, paras. 31-39.
115
See the Objector's Additional Written Submission, para. 43.
116
See the Objector's Additional Written Submissions, para. 40.
117
See the Objection, para. 32.
111

34

the latter would be "at a competitive disadvantage if they choose not to deal with theGoogle-operated .MAP registry."118244.Finally, according to the Objector, permitting the Applicant to operate the disputed gTLD
would interfere with the core activities of the community, since not all major providers
would be able to rely upon the .MAP domain to signal their membership in thecommunity.119
245.The Panel finds that the Objector's arguments regarding the amendment of the Applicant's
application for ".SEARCH" gTLD is not relevant to this case, since it does not affect the
Application for ,MAP. The Panel will not comment on the Applicant's argument that the
new gTLD could lead to the emergence of new technical or commercial models as this it is
not relevant to these proceedings.
246.The Panel cannot agree with the above mentioned arguments of the Objector for thefollowing reasons.
247.First, according to Section 18(b)(iv) of the Application, the Applicant is to develop andpublish verification criteria for the registrants of the second-level domain names within the
Disputed gTLD. Every registrant would be required to verify whether the registrant satisfies
certain criteria. While these criteria have not been developed yet, the Objector did not provethat the Applicant would use the criteria to arbitrarily refuse its competitors’ registration of
domain names. The past Applicant's behaviour itself, even if proved, cannot be consideredthat the Applicant will follow the same pattern in future.
248.Second, the Applicant will be restricted in its possibilities to abuse its position as a DisputedgTLD operator by Specification 11 of the final Registry Agreement, which prohibits giving
advantages to certain registrants.120 All commitments, statements of intent and plans set
forth in the Application shall be incorporated into the Registry Agreement by virtue ofSpecification 11. These commitments include the Applicant's obligations to promotecompetition and not to provide undue preference to certain registrants. In addition to this, theApplicant will be obliged to "operate the TLD in a transparent manner consistent with thegeneral principles of openness and non-discrimination by establishing, publishing andadhering to clear registration policies" subject to public interest commitments voluntarily
made by the Applicant.121
249.Third, the Registry Agreement provides an enforcement framework which allows ICANN
and third parties to enforce the Applicant's obligations (should the Applicant be appointed
the Registry Operator with regard to the Disputed gTLD) in case of breach. This framework
includes, but is not limited to, the following procedures:

118

See the Objector's Additional Written Submission, para. 58.
See the Objector's Additional Written Submission, para. 59.
120
See the Applicant's Additional Written Submission, p. 9
121
See the Applicant's Additional Written Submission, Annex 34.
119

35



The Registry Operator agrees to adhere to and implement any remedies ICANN imposes
subject to Specification 11 of the Registry Agreement. These remedies may include
termination of the Registry Agreement according to Section 4.3(e) of the Registry
Agreement.122

Following the particular procedure provided in Section 4.3(a) of the Registry Agreement,
ICANN may, upon notice to the Registry Operator, terminate the Registry Agreement.

Finally, the registrants whose applications were unduly rejected may always use allavailable remedies available to them in law and equity, including bringing relevantclaims against the Registry Operator.123

250.Therefore, there exist a number of restraining measures for Registry Operators which will
result in either forcing the Registry Operator to cure a breach of its obligation or terminating
the Registry Agreement.
251.Finally, while it is impossible to completely exclude the possibility of the Applicant abusing
its authority, it is not sufficient to demonstrate the theoretical possibility that such abuse
could take place or that the Applicant previously has acted in an anticompetitive manner inorder to sustain the Objection.
252.The Application cannot be rejected on the grounds of future violations which might, without
any reasonable degree of certainty, or might not be committed by the Applicant. Instead,specifically for cases of any potential breach by an applicant, ICANN designed the abovementioned enforcement mechanisms.
ii. Access to Data Passing through the Disputed gTLD

253.The Objector claimed that the Applicant as a Registry Operator will have an advantage of"viewing data passing through the .MAP gTLD,"124 and this advantage will likely cause
economic damage to the Applicant's competitors.125 At the same time, the Objector did notprovide any proof of either this statement or the extent of the Applicant's alleged access.
254.As is pointed out by the Applicant "[…] a Registry Operator does not serve as a conduit for
all data used by its registrants."126 The technical function of the DNS protocol andconsequently of the Registry Operator is simply to inform a computer program (internet
browser, email agent etc.) where to find a particular server within the relevant gTLD.
122

See Specification 11 of the Registry Agreement, para. 2.
Registry Operator is also supposed to be bound by determination of any panel made in accordance with Public Interest
Commitment Dispute Resolution Process ("PICDRP" – see http://www.icann.org/en/news/public-comment/draft-picdrp15mar13-en.htm). PICDRP is still in the process of approval by ICANN, and in case of approval, according to the PICDRP draft,
any allegedly harmed person or entity will be able to initiate proceedings claiming that the Registry Operator has violated one ormore of its Public Interest Commitments. Panel determination may direct the Registry Operator to cure the breach, suspend
registration of new domains in the relevant gTLD or in extraordinary circumstances provide for termination of the Registry
Agreement
124
See the Objector's Additional Written Submission, para. 57.
125
Id.
126
See the Applicant's Additional Written Submission, p. 11.
12336

255.Moreover, as a result of multi-level caching implemented in the DNS infrastructure theRegistry Operator will not receive most DNS queries, which will be handled by other DNS
intermediaries (mostly, internet service providers).
256.The Applicant gave a similar clarification regarding the scope of data available to theRegistry Operator.127
257.Therefore, the Panel does not find that the Applicant will receive access to the data of its
competitors to the extent that it would provide the Applicant with uncompetitive advantage.
iii. Harm to Consumers of Mapping and Related Services

258.According to the Objector, the Applicant as a Registry Operator will be able to hinder
competition in the industry and consequently deprive consumers of mapping and related
services of "a vibrant ecosystem of vertical search and mobile competitors."128259.As already described, the Objector failed to prove that the Applicant would have an
opportunity to hinder competition in the mapping industry as Registry Operator. Therefore,
the Objector did not show any likelihood of detriment to consumers.
iv. Administration of the Disputed gTLD by the Applicant for an Indefinite Period of Time

260.The Objector asserts that the Registry Agreement between ICANN and the Applicant will be
automatically renewed every ten years.129
261.Indeed, subject to Section 4.2(a) of Registry Agreement, it is renewed for successive periodsof ten years. Nevertheless, in accordance with Section 4.2(b), if the Registry Operator during
the preceding term of the Registry Agreement was in material breach of its obligations, then
the Registry Agreement is terminated at the expiration of its term.
262.Moreover, as was mentioned above, the Registry Agreement can be terminated by ICANN
following a certain procedure if the Applicant breaches its obligations.
263.Further, there exist other remedies discussed above to cure breaches of the Registry
Operator, should it commit such breaches.
264.Based on the above, the Panel is not convinced that any breaches and/or abuses by theRegistry Operator (if any) will continue for an indefinite period of time.
265.Therefore, the Panel believes that the Objector did not prove the likelihood of detriment tothe community (even if such a community existed).

127

Id.
See the Objection, para. 33.
129
See the Objection, para. 34.
12837

266.Based on all the above, the Panel finds that the Objection does not meet the standards set
forth in Section 3.5.4 of the Guidebook.
7.

Publication of the Expert Determination

267.The Parties did not come to an agreement on whether to publish this Expert Determinationin full on the Centre's website. In the absence of consensus between the Parties and inaccordance with Article 21(g) of the Procedure, the Panel has decided to follow the default
procedure that supposes publication of the full text of the Expert Determination on theCentre's website.
X.

DECISION

268. For the reasons set out above and in accordance with Article 21(d) of the Procedure, I
hereby render the following Expert Determination:
i.
ii.
iii.

FAIRSEARCH.ORG’s Objection is dismissed.
Applicant CHARLESTON ROAD REGISTRY INC. prevails.
Applicant will be refunded its advance payment of Costs by the Centre.

Date: 27 December 2013

Signature: _________________
Vladimir Khvalei
Expert38