In a victory for fairness and rule-based Internet governance, an independent review panel (IRP) has decided that ICANN was wrong to deny retailing giant Amazon, Inc. the top level domain AMAZON. Key elements of the decision were unanimous, particularly the conclusion that the Board “cannot accept GAC consensus advice as conclusive.” ICANN’s board, in denying the application, failed to provide sufficient reasons for doing so, the panel ruled. The majority of the panel also concluded that the GAC was at fault for not treating Amazon fairly.
We believe the IRP made the right decision, and we hope the ICANN board and the GAC will come to their senses and simply allow the TLD to be awarded to Amazon and be done with it. The main roadblock to this obvious solution is the perception, which we believe to be misguided, that objections from Latin American countries have some merit and therefore some “win-win” solution, most likely involving payoffs to someone, must be found. This will just muddy the waters and prolong the dispute.
We prefer a cleaner solution with better long-term consequences for Internet governance – a solution that does not encourage governments or other objectors to make claims not based in any law or engage in hold up politics in the future. We need to recognize that certain countries were playing identity politics and making bad arguments, and turn our back on that.
Here’s why the objections to the .AMAZON application are baseless:
- Good governance requires clear, pre-specified and objective rules – rule of law, not rule of men. Amazon followed ICANN’s application rules. None of the strings applied for by Amazon are listed as ‘geographic names’ in ICANN’s Applicant Guidebook, and thus were not subject to government pre-approval. The new gTLD process also anticipated applications for “brand” top level domains and there was nothing unexpected about it. The objectors to the application were trying to change the rules in the middle of the game.
- The parties objecting to the application had no application of their own, no alternative ideas about how to use the domain. Indeed, in an attempt to resolve the dispute, Amazon reputedly offered to cover the costs of applying for AMAZONAS or AMAZONIA, but there were no takers. (In the region itself, as well as in many other parts of the world, the region goes by those names) They just wanted to prevent Amazon from having it.
- Objectors never provided even a minimally plausible case that this appropriation harmed anyone or anything. The .AMAZON application was challenged using ICANN’s “community objection” criteria, but an expert report found that the TLD “would not pose a material detriment to the region or the people who inhabit the geographic region proximate to the Amazon River.”
- The horse is already out of the barn. If indeed .AMAZON constituted some kind of illegitimate cultural appropriation, then why doesn’t AMAZON.COM? Or all the Amazon trademarks? There is no rational distinction between any of these uses. Can anyone show how the people or environment of the Amazon region have been harmed by the use of these names?
The .AMAZON case is a good example of how, during its new gTLD program, ICANN allowed its processes to be hijacked by politics, usually emanating from the Governmental Advisory Committee (GAC). In numerous cases, pre-established rules and principles were abandoned and application guidelines modified on the fly simply because the GAC wanted to have discretionary power over top level domain applications.
In the AMAZON case this led to a palpably absurd result. A regime that was established to mediate domain name – trademark conflicts denied an application by a company for its own name – a company that had a registered trademark for AMAZON in over 170 nations, and whose use of the name is so well-known globally that it has obtained secondary meaning (in English) that is largely unrelated to the South American region. And it denied the application not because someone else also wanted the name, and not because of any harm to a community, but simply because a few representatives of Latin American governments wanted to flex their muscles.
Regardless of whether Amazon actually gets the TLD, this case has important precedent value. The ruling says that the ICANN board cannot simply defer to consensus GAC advice. If it upholds that advice, it must set forth reasons and explain why the reasons reflect “well-founded and credible public policy interests.” As one of the panelists noted, “For me, the key requirement is that there be a ‘well-founded’ basis for the [Board’s] conclusion.” Once Amazon had rebutted the presumption in favor of following GAC advice, he wrote, “the burden of making that showing became ICANN’s to bear. It failed to do so.”
