FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NAME.SPACE, INC.,

Plaintiff-Appellant,

v.

INTERNET CORPORATION FOR 

ASSIGNED NAMES AND NUMBERS,

Defendant-Appellee.

No. 13-55553

D.C. No.

2:12-cv-08676-

PA-PLA

OPINION

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Argued and Submitted

March 6, 2015—Pasadena, California

Filed July 31, 2015

Before: Stephen Reinhardt, N. Randy Smith,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Hurwitz
2 NAME.SPACE, INC. V. ICANN

SUMMARY*

Antitrust / Trademark

The panel affirmed the dismissal of an antitrust suit 

brought against the Internet Corporation for Assigned 

Names and Numbers, which, under contract with the 

Department of Commerce, creates and assigns top level 

domains, such as “.com” and “.net.”

name.space, a registry specializing in “expressive” top 

level domains, such as .art and .food, challenged ICANN’s 

2012 round of applications for new top level domains to be 

included in the ICANN “root zone file.” 

The panel held that the complaint did not state a claim 

for conspiracy in restraint of trade or commerce under § 1 

of the Sherman Act because it did not sufficiently allege an 

anticompetitive agreement. The complaint did not state a 

claim for monopolization in violation of § 2 of the Sherman 

Act because ICANN is not a competitor in the market to act 

as a top level domain registry, the international market for 

domain names, or the market for blocking or defensive 

registration services.

The panel held that trademark and unfair competition 

claims were not ripe for adjudication because the complaint 

 * This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.

 
NAME.SPACE, INC. V. ICANN 3

did not allege that ICANN has delegated or intends to 

delegate any of the top level domains that name.space uses.

The panel also held that the complaint did not state a 

claim for tortious interference or unfair business practices.

COUNSEL

Michael B. Miller (argued), Craig B. Whitney, Adam J. 

Hunt, Morrison & Foerster LLP, New York, New York, for 

Plaintiff-Appellant.

Jeffrey A. LeVee (argued), Eric P. Enson, Kathleen P. 

Wallace, Jones Day, Los Angeles, California, for 

Defendant-Appellee.
4 NAME.SPACE, INC. V. ICANN

OPINION

HURWITZ, Circuit Judge:

The Internet Corporation for Assigned Names and 

Numbers (“ICANN”) creates and assigns top level domains 

(“TLDs”), such as “.com” and “.net.” In 2012, ICANN 

accepted applications for the creation of new TLDs. This 

suit alleges that the 2012 Application Round violated 

federal and California law. The district court dismissed the 

complaint, and we affirm.

I. Factual Background

A. Top Level Domains

Each Internet website is assigned a unique Internet 

Protocol (“IP”) numerical address. For ease of searching, 

websites also have alphanumeric domain names, such as 

“nytimes.com.” The portion before the dot—“nytimes”—is 

called the “second level domain.” The portion after the 

dot—“com”—is the TLD.

There are three main types of TLDs—sponsored TLDs 

(such as “.gov” and “.edu”), restricted to users who meet 

specified criteria; country-code TLDs (such as “.uk” or 

“.fr”), controlled by sovereign nations; and generic TLDs 

(such as “.com” and “.net”), those at issue in this case, open 

to all users. Individual generic TLDs are operated by 

registries, such as VeriSign, which sell the ability to 

register a domain name with a particular TLD and maintain 

a zone file, or registry, of all the domain names associated 

with that TLD. These registries approve registrars, such as 

godaddy.com, to sell domain names incorporating those 

TLDs to the public.
NAME.SPACE, INC. V. ICANN 5

A “Domain Name System” (“DNS”) links each of these 

unique domain names with the IP address corresponding to 

that website. When an Internet user searches for a domain 

name, the DNS converts the domain name to the IP address 

by searching a list of TLDs called the “root zone file” (the 

“Root”). Additional TLDs are made available by 

organizations other than ICANN on alternative root files. 

However, alternative root files can only be accessed 

through special settings not routinely employed by most 

Internet users. Thus, the vast majority of Internet users can 

only access websites with TLDs included in the ICANNcontrolled Root. When the complaint in this case was filed, 

ICANN included eight generic TLDs on the Root.

B. ICANN

The DNS and the Root were initially managed by the 

National Science Foundation. See Daniela Michele 

Spencer, Note, Much Ado About Nothing: ICANN’s New 

gTLDs, 29 Berkeley Tech. L.J. 865, 867–69 (2014). In 

1997, the National Science Foundation transferred control 

to the Department of Commerce (“DOC”). The DOC later 

issued a white paper proposing that management be 

transferred to a private, not-for-profit corporation. See

Management of Internet Names and Addresses, 63 Fed. 

Reg. 31,741, 31,741 (Jun. 10, 1998).1 The white paper 

suggested that the corporation’s board of directors “should 

be balanced to equitably represent the interests of IP 

 1 The white paper was cited repeatedly in the complaint and was 

therefore incorporated by reference. See United States v. Ritchie, 

342 F.3d 903, 907–08 (9th Cir. 2003).

 
6 NAME.SPACE, INC. V. ICANN

number registries, domain name registries, domain name 

registrars, the technical community, Internet service 

providers (ISPs), and Internet users (commercial, not-forprofit, and individuals) from around the world.” Id. at 

31,750; see also A. Michael Froomkin & Mark A. Lemley, 

ICANN and Antitrust, 2003 U. Ill. L. Rev. 1, 12 (2003).

In 1998, the DOC contracted with ICANN, a non-profit 

corporation, to manage the Internet Assigned Numbers 

Authority (“IANA”). See Justin T. Lepp, Note, ICANN’s 

Escape from Antitrust Liability, 89 Wash. U. L. Rev. 931, 

935, 959–60 (2012); Froomkin & Lemley, supra, at 15. 

ICANN thereby obtained the authority to operate the DNS 

and the Root, add new TLDs to the Root, and determine 

which registries would operate existing TLDs. The 

Memorandum of Understanding between the DOC and 

ICANN reserved the DOC’s right to withdraw recognition 

of ICANN. See Froomkin & Lemley, supra, at 13–14. In 

2009, the Memorandum lapsed and the DOC formally 

relinquished control over DNS policy to ICANN. See

Lepp, supra, at 935.2

ICANN is controlled by a board of directors with 

qualifications along the lines proposed in the white paper; 

 2 The DOC, however, still retained the ability to move the IANA 

contract to another organization. See Lepp, supra, at 959–60. The 

federal government plans to end its coordination role when the current 

IANA contract expires in September 2015, and has asked ICANN to 

develop a transition plan. See Nat’l Telecomms. & Info. Admin., NTIA 

Announces Intent to Transition Key Internet Domain Name Functions

(Mar. 14, 2014), http://www.ntia.doc.gov/press-release/2014/ntiaannounces-intent-transition-key-internet-domain-name-functions.

 
NAME.SPACE, INC. V. ICANN 7

many are industry insiders. The government has no formal 

input into the selection of the directors. See Froomkin & 

Lemley, supra, at 10–11.

C. name.space

name.space is a registry specializing in “expressive” 

TLDs, such as .art, .food, .magic, .music, .now, and .sucks. 

According to the complaint, name.space’s business model 

contemplates “the simultaneous operation of a significant 

number of TLDs.” None of name.space’s TLDs is 

currently available on the Root.

D. The 2000 and 2012 Application Rounds

In 2000, ICANN first solicited applications for new 

TLDs. The application instructions were seven pages, the 

fee was $50,000, and a single application could seek 

multiple TLDs. The application included a release of all 

liability against ICANN. name.space applied for 118 

TLDs. ICANN approved only seven new TLDs, none of 

which was awarded to name.space.

In 2012, ICANN again accepted applications for new 

TLDs. This time, the application guidebook was 349 pages 

in length, the fee was $185,000, and each application could 

seek only one TLD. Unsuccessful applicants from the 2000 

Round received an $86,000 credit on one application, but 

were required to waive any claims arising from the 2000 

Round. name.space did not apply in 2012 because the 

financial and procedural costs were too high. As in 2000, 

applications for new TLDs in 2012 came largely from 

industry insiders.

The list of TLDs applied for by others in 2012 included 

189 TLDs currently in use by name.space. As of the filing 
8 NAME.SPACE, INC. V. ICANN

of the complaint, ICANN had not announced which new 

TLDs will be included on the Root.3

E. Procedural Background

In 2012, name.space filed a complaint in the Central 

District of California, alleging that ICANN violated 

sections 1 and 2 of the Sherman Act, the Lanham Act, the 

California Cartwright Act, and the California Business and 

Professions Code in connection with the 2012 Application 

Round. The complaint also alleged common law 

trademark, unfair competition, and tortious interference 

claims.

In 2013, the district court granted ICANN’s motion to 

dismiss the complaint, holding that the trademark and 

unfair competition claims failed to present a justiciable case 

or controversy, and that the other claims failed to state a 

claim upon which relief could be granted.4 The district 

court dismissed the Sherman Act § 2 claim with prejudice, 

and granted name.space leave to amend as to all other 

claims. After name.space elected not to amend, final 

judgment was entered in favor of ICANN. This timely 

appeal followed.

 3 name.space’s complaint only challenges the 2012 Round’s rules and 

procedures. We therefore do not consider today any questions 

concerning the subsequent delegation of TLDs.

 4 ICANN had also moved to dismiss on the ground that the release 

clause in the 2000 application barred liability on all claims. The district 

court converted the motion into one for summary judgment, which it 

denied. ICANN does not seek review of that decision.

 
NAME.SPACE, INC. V. ICANN 9

II. Jurisdiction and Standard of Review

We have jurisdiction over this appeal under 28 U.S.C. 

§ 1291. We review de novo dismissals for failure to state a 

claim, Coal. for ICANN Transparency, Inc. v. VeriSign, 

Inc., 611 F.3d 495, 501 (9th Cir. 2010) (“ICANN 

Transparency”), and for absence of a justiciable case or 

controversy, Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 

1084 (9th Cir. 2003). “All allegations of material fact are 

taken as true and are construed in the light most favorable 

to” the plaintiff. ICANN Transparency, 611 F.3d at 501.

III. Sherman Act § 1

Section 1 of the Sherman Act prohibits conspiracies “in 

restraint of trade or commerce.” 15 U.S.C. § 1. A § 1 

claim requires: (1) a “contract, combination or conspiracy 

among two or more persons or distinct business entities”; 

(2) which is intended to restrain or harm trade; (3) “which 

actually injures competition”; and (4) harm to the plaintiff 

from the anticompetitive conduct. Brantley v. NBC 

Universal, Inc., 675 F.3d 1192, 1197 (9th Cir. 2012) 

(internal quotation marks omitted). “Because § 1 . . . does 

not prohibit all unreasonable restraints of trade but only 

restraints effected by a contract, combination, or 

conspiracy, the crucial question is whether the challenged 

anticompetitive conduct stems from independent decision 

or from an agreement, tacit or express.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 553 (2007) (alterations, citations, 

and internal quotation marks omitted).

A complaint asserting a § 1 claim must allege facts 

“plausibly suggesting (not merely consistent with)” a 

conspiracy. Id. at 557. It is not enough merely to include 

conclusory allegations that certain actions were the result of 

a conspiracy; the plaintiff must allege facts that make the 
10 NAME.SPACE, INC. V. ICANN

conclusion plausible. See Kendall v. Visa U.S.A., Inc., 

518 F.3d 1042, 1047–48 (9th Cir. 2008). This standard 

does not impose a “probability requirement,” but “simply 

calls for enough fact to raise a reasonable expectation that 

discovery will reveal evidence of illegal agreement.” See 

Twombly, 550 U.S. at 556.

The complaint in this case alleges that the rules and 

procedures governing the 2012 Application Round were the 

result of a conspiracy between ICANN, its board members, 

and industry insiders. As is common, the complaint 

includes no direct allegation of an agreement among the 

alleged co-conspirators. See Oltz v. St. Peter’s Cmty. 

Hosp., 861 F.2d 1440, 1450–51 (9th Cir. 1988). Rather, 

the complaint’s conspiracy assertion rests on the following 

alleged circumstantial evidence: (a) some of ICANN’s 

board members have “known, vested interests in the 

economic performance of the TLD registries”; (b) ICANN 

and its board designed the rules for the 2012 Application 

Round; (c) the 2012 application price was significantly 

higher than the 2000 price, and the rules more complex; (d) 

the 2012 Application Round’s price and rules conflicted 

with name.space’s business model; (e) the majority of 2012 

applicants were industry insiders and large technology 

companies; and (f) some potential applicants, including 

name.space, were deterred from applying in 2012 by the 

price and rules.

We cannot, however, infer an anticompetitive 

agreement when factual allegations “just as easily suggest 

rational, legal business behavior.” Kendall, 518 F.3d at 

1049. Here, ICANN’s decision-making was fully 

consistent with its agreement with the DOC to operate the 

DNS and the Root. See Matsushita Elec. Indus. Co. v. 

Zenith Radio Corp., 475 U.S. 574, 597 n.21 (1986) 
NAME.SPACE, INC. V. ICANN 11

(“[C]onduct that is as consistent with permissible 

competition as with illegal conspiracy does not, without 

more, support even an inference of conspiracy.”); Eclectic 

Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 

996 (9th Cir. 2014) (explaining that courts must consider 

obvious alternative explanations for a defendant’s behavior 

when analyzing plausibility). In transferring control to 

ICANN, the DOC specifically required it to coordinate the 

introduction of new TLDs onto the Root. This is exactly 

what ICANN did in the 2012 Application Round—after 

determining that the Internet could sustain more TLDs, 

ICANN created a process for TLD registries to apply for 

new ones. The 2012 rules and procedures were facially 

neutral, and there are no allegations that the selection 

process was rigged. See ICANN Transparency, 611 F.3d at 

502–03 (affirming in part a dismissal of a § 1 claim 

because there were insufficient allegations that competitive 

bidding was rigged).

name.space contends that an anticompetitive agreement 

nonetheless is plausible because the rules of the 2012 

Application Round, including the application fee and limit 

of one TLD per application, were contrary to its business 

model. But, absent allegations that suggest ICANN’s 

decisions were illogical or suspicious, see Twombly, 

550 U.S. at 556 n.4; In re High-Tech Emp. Antitrust Litig., 

856 F. Supp. 2d 1103, 1116 (N.D. Cal. 2012) (noting that it 

“strain[ed] credulity” that alleged conduct occurred absent 

unlawful coordination), ICANN’s independent business 

decisions about how many TLDs to create, and at what 

price they are offered, are not policed by § 1, see T.W. Elec. 

Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 

634 (9th Cir. 1987). ICANN was not required to replicate 

the 2000 Application Round in 2012, or even to create new 

TLDs. The application rules served to ensure that those 
12 NAME.SPACE, INC. V. ICANN

who obtained new TLDs would be financially stable. This 

is a perfectly logical decision, and one that ICANN, 

through its contract with the DOC, had full authority to 

make.

The complaint alleges that ICANN’s board members 

had motive to design an application process that would 

benefit their corporate allies. But such motive alone cannot 

sustain a § 1 claim. See Matsushita, 475 U.S. at 597 n.21; 

In re Late Fee & Over-Limit Fee Litig., 528 F. Supp. 2d 

953, 964 (N.D. Cal. 2007) (citing VI Philip E. Areeda & 

Herbert Hovenkamp, Antitrust Law: An Analysis of 

Antitrust Principles and Their Application ¶ 1411, at 68 (2d 

ed. 2003)), aff’d, 741 F.3d 1022 (9th Cir. 2014). And, the 

complaint includes no specific allegations of wrongdoing 

that would indicate that the board members acted with an 

improper motive. Cf. Am. Soc’y of Mech. Eng’rs, Inc. v. 

Hydrolevel Corp., 456 U.S. 556, 560–62, 571–72 (1982) 

(evidence that committee members used their positions to 

disparage a rival’s product); Radiant Burners, Inc. v. 

Peoples Gas Light & Coke Co., 364 U.S. 656, 659–60 

(1961) (per curiam) (association members conspired to 

withhold a necessary certification from rival).

name.space alleges that the rules advantaged the 

businesses with which some board members were 

associated. But, it was understood from ICANN’s 

inception that its board would include industry insiders, and 

that the board would approve the application process. See

Management of Internet Names and Addresses, 63 Fed. 

Reg. at 31,749–50. We cannot infer an illegal agreement 

with outside interests simply because ICANN’s rational 

business decisions favor the status quo rather than 

name.space’s untested alternative business model. See

Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764 
NAME.SPACE, INC. V. ICANN 13

(1984) (“There must be evidence that tends to exclude the 

possibility that the [alleged conspirators] were acting 

independently.”).

It may well be, as name.space claims, that an “open 

Internet” represents better public policy than one with a 

more limited supply of TLDs. But the DOC left that choice 

to ICANN. At bottom, name.space’s complaint alleges that 

ICANN’s actions should be viewed as arising from a 

conspiratorial agreement because a conspiracy is 

theoretically possible. But that is not enough to state a § 1 

claim. We cannot infer a conspiracy based on speculation 

that the very type of board members the DOC sought must 

have conspired to restrain trade simply because the system 

they adopted made it difficult for name.space to carry out 

its business plans.5

IV. Sherman Act § 2

Section 2 of the Sherman Act prohibits monopolization. 

15 U.S.C. § 2. “There are three essential elements to a 

successful claim of Section 2 monopolization: (a) the 

possession of monopoly power in the relevant market; 

(b) the willful acquisition or maintenance of that power; 

and (c) causal antitrust injury.” Allied Orthopedic 

Appliances Inc. v. Tyco Health Care Grp. LP, 592 F.3d 

991, 998 (9th Cir. 2010) (quoting Cal. Computer Prods., 

 5 Because the analysis under the Cartwright Act, Cal. Bus. & Prof. 

Code §§ 16700–16770, is identical to that under the Sherman Act, see

Cnty. of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1160 (9th 

Cir. 2001), we also affirm the district court’s dismissal of the 

Cartwright Act claim.

 
14 NAME.SPACE, INC. V. ICANN

Inc. v. Int’l Bus. Mach. Corp., 613 F.2d 727, 735 (9th Cir. 

1979)) (internal quotation marks omitted).6

The complaint posits three relevant markets: (a) the 

market to act as a TLD registry; (b) the international market 

for domain names; and (c) the market for blocking or 

defensive registration services. ICANN, however, is 

neither a registry nor a registrar. Because ICANN is not a 

competitor in any of the three markets, they cannot serve as 

the basis for a § 2 monopoly claim. See Mercy-Peninsula 

Ambulance, Inc. v. San Mateo Cnty., 791 F.2d 755, 759 

(9th Cir. 1986) (“The gravamen of a section 2 claim is the 

deliberate use of market power by a competitor to control 

price or exclude competition.”); see also Spanish Broad. 

Sys. of Fla., Inc. v. Clear Channel Commc’ns, Inc., 

376 F.3d 1065, 1075 (11th Cir. 2004) (“There is no 

question that [defendant] does not participate in the 

Spanish-language radio market. Thus, [defendant] cannot 

attempt to monopolize that market.”).

name.space argues that ICANN should be considered a 

participant in the three markets because ICANN has 

ultimate control over TLDs, which are the essential aspect 

of each of the relevant markets. But this does not mean 

that ICANN competes in the markets. In Mercy-Peninsula, 

we addressed whether a county monopolized a market 

because it chose which company would provide paramedic

services. 791 F.2d at 756. We rejected § 2 liability, 

holding that because “the county is not a competitor in the 

health care provision market,” it “cannot be charged with 

 6 No claim for conspiracy to monopolize was raised in the complaint.

 
NAME.SPACE, INC. V. ICANN 15

having used market position to exclude competition.” Id. at 

759; see also Olde Monmouth Stock Transfer Co. v. 

Depository Trust & Clearing Corp., 485 F. Supp. 2d 387, 

392–93 (S.D.N.Y. 2007) (rejecting the argument that 

“market power under Section 2 of the Sherman Act 

encompasses ‘influence’ by a non-competitor over the 

relevant market”).

7

Even if ICANN competed in any of the relevant 

markets, § 2 liability could only arise if ICANN unlawfully 

acquired or maintained its monopoly. See Allied 

Orthopedic, 592 F.3d at 998. The district court correctly 

held that ICANN’s authority was lawfully obtained through 

a contract with the DOC. See United States v. Grinnell 

Corp., 384 U.S. 563, 570–71 (1966) (distinguishing 

“willful acquisition” of monopoly power from 

“development as a consequence of a superior product, 

business acumen, or historic accident”). A monopolist can 

also violate § 2 by engaging in predatory behavior against 

potential competitors. See ICANN Transparency, 611 F.3d 

 7 Contrary to name.space’s argument, this case is not akin to Tate v. 

Pacific Gas & Electric Co., 230 F. Supp. 2d 1072 (N.D. Cal. 2002). 

There, the relevant market was “natural-gas technologies and/or the 

specialized equipment needed to supply the specialized fuels,” which 

encompassed two distinct competing technologies—compressed natural 

gas (“CNG”) and liquefied natural gas (“LNG”). Id. at 1075–76. 

Although the defendant only sold CNG, the district court held it could 

be liable for hindering a LNG competitor based on allegations that it 

was protecting its CNG business and later planned to enter, and 

monopolize, the LNG market. Id. at 1078–79. Here, in contrast, 

ICANN does not need to hinder any of the relevant markets to protect 

its own monopoly, and there are no allegations that it plans to enter any 

of them.

 
16 NAME.SPACE, INC. V. ICANN

at 506; Alaska Airlines, Inc. v. United Airlines, Inc., 

948 F.2d 536, 547–49 (9th Cir. 1991). But name.space 

does not allege such behavior; indeed, name.space is not 

restricted from establishing TLDs on alternative root files.

The DOC chose ICANN to manage the DNS and the 

Root. Barring predatory behavior, ICANN is “free to 

choose the parties with whom [it] will deal, as well as the 

prices, terms, and conditions of that dealing.” Pac. Bell 

Tel. Co. v. Linkline Commc’ns, Inc., 555 U.S. 438, 448 

(2009); see also Verizon Commc’ns Inc. v. Law Offices of 

Curtis V. Trinko, LLP, 540 U.S. 398, 407–08 (2004). The 

complaint merely alleges that the 2012 Application Round 

was structured in a manner not advantageous to 

name.space’s business model. But whether ICANN’s 

choices were wise or fair is an issue outside the purview of 

§ 2.

V. Trademark Claims

Trademark and unfair competition law protect against 

the misleading use of another’s mark. See Mattel, Inc. v. 

Walking Mountain Prods., 353 F.3d 792, 806 (9th Cir. 

2003); Los Defensores, Inc. v. Gomez, 166 Cal. Rptr. 3d 

899, 912–13 (Ct. App. 2014). The complaint asserts 

Lanham Act, common law trademark, and common law 

unfair competition claims because ICANN accepted 

applications for TLDs in use by name.space.8 The district 

court found these claims not ripe for adjudication. We 

agree.

 8 Like the parties, we treat the three related claims collectively.

 
NAME.SPACE, INC. V. ICANN 17

“A question is fit for decision when it can be decided 

without considering ‘contingent future events that may or 

may not occur as anticipated, or indeed may not occur at 

all.’” Addington v. U.S. Airline Pilots Ass’n, 606 F.3d 

1174, 1179 (9th Cir. 2010) (quoting Cardenas v. Anzai, 

311 F.3d 929, 934 (9th Cir. 2002)). We applied this 

principle to a patent infringement claim in Swedlow, Inc. v. 

Rohm & Haas Co., 455 F.2d 884 (9th Cir. 1972) (per 

curiam). The plaintiff in that case alleged that the 

operation of a factory under construction would, upon 

completion, infringe on the plaintiff’s patents. Id. at 885. 

We affirmed the dismissal of this claim as unripe, finding 

the threat of infringement “too remote and unduly 

speculative” because only the floor and the shell of the 

factory were then in place. Id. at 886.

The Swedlow analysis applies here. See Image Online 

Design, Inc. v. Internet Corp. for Assigned Names & 

Numbers, No. CV 12–08968 DDP (JCx), 2013 WL 489899,

at *5 (C.D. Cal. Feb. 7, 2013) (applying Swedlow to 

trademark infringement). name.space has not alleged that 

ICANN has delegated or intends to delegate any of the 

TLDs that name.space uses. All that name.space alleges is 

that ICANN has accepted applications from companies 

wanting to use one of those TLDs on the Root. Although 

name.space may have a ripe claim if such a delegation 

occurs, the complaint as it stands does not allege “actual or 

imminent infringement.” Swedlow, 455 F.2d at 886.9

 9 Because the complaint contains no allegations about delegations, we 

do not today consider whether an actual delegation would give rise to a 

 
18 NAME.SPACE, INC. V. ICANN

We are unpersuaded by name.space’s argument that the 

acceptance of the applications and fees alone constitutes 

infringement. The cases it cites all deal with situations in 

which the defendant clearly intended to violate plaintiff’s 

trademarks in the near future. See Levi Strauss & Co. v. 

Shilon, 121 F.3d 1309, 1311–12, 1314 (9th Cir. 1997) 

(finding Lanham Act liability for a defendant who 

“admitted to offering to sell counterfeit Levi’s jeans and 

components”); Millennium Labs., Inc. v. Ameritox, Ltd., 

No. 12CV1063-MMA (JMA), 2012 WL 4863781, at *1 

(S.D. Cal. Oct. 12, 2012) (denying a motion to dismiss an 

infringement claim against a defendant who offered to sell 

a product employing similar trade dress); Nova Wines, Inc. 

v. Adler Fels Winery LLC, 467 F. Supp. 2d 965, 970–72 

(N.D. Cal. 2006) (granting a preliminary injunction against 

a defendant who used plaintiff’s trademark in its product 

packaging, but had yet to actually sell it). No such facts 

were alleged here. Nor did ICANN “use” the TLDs simply 

by accepting the applications. See Bosley Med. Inst., Inc. v. 

Kremer, 403 F.3d 672, 676 (9th Cir. 2005) (“Infringement 

claims are subject to a commercial use requirement.”); Los 

Defensores, 166 Cal. Rptr. 3d at 913 (noting that unfair 

competition liability requires a “misleading or deceptive 

use”).

VI. Tortious Interference Claims

name.space alleges California common law claims for 

tortious interference with contract and prospective 

economic advantage. The elements of a tortious 

justiciable controversy or the merits of such a controversy. See supra

note 3.

 
NAME.SPACE, INC. V. ICANN 19

interference with contract claim are: “(1) a valid contract 

between plaintiff and a third party; (2) defendant’s 

knowledge of the contract; (3) defendant’s intentional acts 

designed to induce breach or disruption of the contract; 

(4) actual breach or disruption; and (5) resulting damage.” 

Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. 

Corp., 525 F.3d 822, 825 (9th Cir. 2008). A tortious 

interference with prospective economic advantage claim 

has the same elements (focusing instead on the existence 

and knowledge of a prospective economic relationship), but 

also requires that the defendant’s conduct be “wrongful by 

some legal measure other than the fact of interference 

itself.” Kor. Supply Co. v. Lockheed Martin Corp., 63 P.3d 

937, 950 (Cal. 2003) (internal quotation marks omitted).

The district court properly dismissed these claims. 

name.space does not allege any facts plausibly suggesting 

that ICANN accepted applications in the 2012 Round with 

the intent to breach or disrupt any existing contracts or 

prospective economic relationships. name.space, 

moreover, does not allege any specific resultant disruption 

to contractual or economic relationships. See, e.g., Image 

Online, 2013 WL 489899, at *9–10; Conte v. Jakks Pac., 

Inc., No. 1:12–CV–00006–LJO–GSA, 2012 WL 6115632, 

at *5–6 (E.D. Cal. Dec. 10, 2012); Semi-Materials Co. v. 

SunPods, Inc., No. 11–CV–06719–LHK, 2012 WL 

3962487, at *6 (N.D. Cal. Sept. 10, 2012). And, the failure 

to sufficiently allege a wrongful act outside of the 

interference itself forecloses an interference with 

prospective economic advantage claim. See Kor. Supply, 

63 P.3d at 950.

VII. Unfair Business Practices Claim

“California’s statutory unfair competition laws broadly 

prohibit unlawful, unfair, and fraudulent business acts.” 
20 NAME.SPACE, INC. V. ICANN

Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 

1151 (9th Cir. 2008) (citing Kor. Supply, 63 P.3d at 943). 

Statutory liability can be premised on antitrust or trademark 

violations. See id. at 1152 (antitrust); Cleary v. News 

Corp., 30 F.3d 1255, 1263 (9th Cir. 1994) (trademark). 

Because name.space failed to state an antitrust violation, 

trademark claim, or other unlawful act, the district court 

properly dismissed this claim.

VIII. Conclusion

For the reasons stated above, we AFFIRM the 

judgment of the district court.