Amazon.com gets big win in domain battle, may yet get .Amazon domain

[David Cake]

This decision is well worth reading. Even if you do not have any interest in the specific os fate .amazon application, this decision potentially has significant implications for how the board should treat GAC advice, which in turn will make a big difference to how the board deals with issues where the GAC advice conflicts with other policy inputs (e.g. GNSO policy from working groups, which is where most NCSG policy work is done). 

The really relevant part is this (and what follows):
> The Board, acting through the NGPC, acted in a manner inconsistent with its Articles, Bylaws and Applicant Guidebook because, as more fully explained below, by giving complete deference to the consensus advice of the Government Advisory Committee (“GAC”) regarding whether there was a well-founded public policy reason for its advice, the NGPC failed in its duty to independently evaluate and determine whether valid and meritsbased public policy interests existed supporting the GAC’s consensus advice. In sum, we conclude that the NGPC failed to exercise the requisite degree of independent judgment in making its decision…

So this decision says that the board can not simply follow GAC advice because the GAC says so. It needs to find that there is a legitimate argument behind the policy advice as well. This really changes the way the GAC interacts with the rest of ICANN. In cases where the GAC advise asserts a position but does not have a strong policy argument behind it, it will be hard for the board to follow it, especially when there is a strong  punter argument. 

Document here https://www.icann.org/en/system/files/files/irp-amazon-final-declaration-11jul17-en.pdf <https://www.icann.org/en/system/files/files/irp-amazon-final-declaration-11jul17-en.pdf>

For example, the upcoming conflict between the Curative Rights for IGOs WG and the GAC advice on the topic - the GAC is advice is clear, but seems to mostly express the desires of IGOs without a legal or detailed public policy rationale, while the GNSO WG is fairly thorough with a lot of detailed legal analysis to back up its position. How the board will approach this conflict has surely changed significantly. 

David


> On 19 Jul 2017, at 12:06 am, Malisa Richards <malisarichards25.2008 at GMAIL.COM> wrote:
> 
> Independent review process recommends ICANN reconsider .amazon top level domain name application.
> 
> One of the biggest controversies in ICANN’s new top level domain name program has been the denial of Amazon.com’s applications for the .Amazon top level domain as well as the Chinese and Japanese equivalents.
> 
> Amazon.com was one of the largest applicants for new domain names, but its .brand strategy was thrown into disarray when when governments opposed its .amazon application.
> 
> This was bad for the new TLD programs supporters, as any use of .Amazon by the internet giant would drastically increase awareness of alternative endings to the right of the dot in domain names. Amazon has created some sites on its other .brand domains, such as .AWS. But a major push on .Amazon would raise the bar.
> 
> On the surface, there was nothing in the new top level domain applicant guidebook that disallowed the company from getting .amazon. Notably, it wasn’t on a list of protected geographic names.
> 
> But the governments of Brazil and Peru, which are among the countries along the Amazon river, filed an early warning notice about the domain. They had concerns that Amazon.com getting the domain name would somehow hurt the people of the Amazon. It was perplexing <http://domainnamewire.com/2013/12/10/hardheaded-governments-vs-amazon-com/>.
> 
> Yet, they were able to convince the ICANN Governmental Advisory Committee (GAC) to issue consensus advice objecting to the issuance of the .amazon domain. (A community objection filed by the independent objector was denied.)
> 
> The GAC advice didn’t come with much of a rationale. Nevertheless, ICANN’s board gave deference to the advice and denied Amazon.com’s applications for the three domains.
> 
> Amazon filed for Independent Review and just got a big win <http://domainnamewire.com/2013/12/10/hardheaded-governments-vs-amazon-com/> (pdf). The panel determined that ICANN’s board gave too much deference to the GAC and that it should reconsider its decision.
> 
> The panel:
> 
> …recommends that the Board of ICANN promptly re-evaluate Amazon’s applications in light of the Panel’s declarations above. In its re-evaluation of the applications, the Board should make an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon’s applications….The GAC consensus advice, standing alone, cannot supplant the Board’s independent and objective decision with a reasoned analysis.
> 
> Following the decision, an Amazon.com spokesperson issued this statement to Domain Name Wire:
> 
> “We look forward to the ICANN Board re-evaluating our application for the .AMAZON top level domain so that we may develop new experiences and innovations on behalf of our customers.”
> 
> 
> Best Regards,
> 
> 
> Bertnell A. Malisa Richards 
> 

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