Objection Period for New gTLD Applications Closes Today; Affected Applicants Will Have Approximately 60 Days to Respond
The period for filing an objection to a new gTLD application, which opened in June 2013, closes today. During the objection period, objections could be filed on the basis of string confusion, limited public interest, community opposition, and legal rights. With the objection period now closing, the Dispute Resolution Service Providers (DSRPs) will now proceed with the resolution of the objections.
The first step is the DRSPs' administrative reviews of each objection, during which objectors will be given an opportunity to correct any administrative deficiencies that would otherwise disqualify their objections. Properly filed objections will then be registered for processing, at which time information about the objections must be posted to the DRSPs websites.
Information about the objections will therefore become publicly available in a piecemeal fashion over the next few weeks, and ICANN's formal Dispute Announcement identifying all registered objections will be posted within 30 days. Following this Dispute Announcement, the DRSPs will send a formal notice to each applicant for which one or more objections have been filed. Affected applicants will then have 30 days from the date of electronic transmission of that notice to file their responses. Accordingly, because both the timing of ICANN's Dispute Announcement and the speed with which DRSPs will provide the subsequent notice are uncertain (and may vary from objection to objection), the deadline for filing a response cannot be specifically calculated, but objected-to applicants can expect that their responses will be due approximately 60 calendar days from today.
If an applicant does not respond to an objection by the deadline, the objection will succeed by default. In most cases, the success of the objection means the application will not proceed.
The New gTLD Dispute Resolution Procedure may be rather abbreviated: an objection can be resolved on the basis of the initial filing and response, though the Dispute Panels may give permission for additional filings, and the rules specifically state that there usually will be no live hearing. Responding applicants should therefore be aware that their initial response may represent their only opportunity to argue their cases, and should ensure that their responses are as thorough as possible.
Applicants responding to objections should carefully review all of the criteria for the specific type of objection, and tailor their strategies to the objecting parties, the objecting parties' specific arguments, and their evidence, if any. We provide certain considerations below, but they are only a starting point:
Community Based Objections
The standing requirement is perhaps most important in resolving community-based objections. The nature of the objector should be considered (is it an individual commercial actor or a representative group?), as well as the definition of the community as described in the objection (is the definition overinclusive or underinclusive, and how has that description been consistently applied throughout the entire objection presentation?). Respondents also should not lose sight of the need for the objector to prove material detriment. Objectors who are simply regretful of their decisions not to apply for a TLD should be forcefully challenged, with any implicit and unfounded assumptions expressly refuted in any response. Failure to provide actual evidence should also be highlighted and counteracted.
String Similarity Objections
Unlike the other objections, a successful string similarity objection involving other applied-for strings will not result in the immediate withdrawal of the application; instead, all applications for strings deemed confusingly similar will be placed in contention sets to be resolved through the string contention procedures. In many cases, then, a win will force a (perhaps) costly auction. Responses to these types of objections should likely involve the use of expert testimony, scientific studies, and/or surveys.
Limited Public Interest Objections
Applicants responding to limited public interest objections may be able to take advantage of the "quick look procedure," which allows a Panel to immediately dismiss an objection as "manifestly unfounded," thereby minimizing the time and expense involved in defending the objection. Because such a determination occurs before full payment of DRSP fees, and because the applicant may be eligible for a refund of the initial DRSP fees, a "quick look" dismissal could be very beneficial for an applicant, especially in responding to objections going well beyond the ICANN described subjects. Attempts by handcuffed objectors to enlarge this narrow objection may be met with strong opposition tied to competing principles of international law.
Legal Rights Objections
The standards for resolving legal rights objections incorporate elements long employed in trademark and domain name disputes, so applicants should certainly draw on those materials in developing their responses. However, ICANN has also made it clear that the list of considerations for a legal rights objection is non-exclusive, so applicants should also think creatively about their arguments, and be aware of the need to address whatever concerns the Panel may have about the applications, whether or not such concerns are among the stated criteria.
These considerations only scratch the surface of the legal issues which might arise in responding to an objection—not to mention the issues of procedural strategy, such as nomination of Panel members (where possible), the consolidation of objections, the request for additional rounds of submissions—but careful consideration of these and other issues will improve an applicant's chances of successfully defeating an objection.
If you want more information on this topic or any other subject, please do not hesitate to contact us. We are available to assist you in assessing potential influences on your application and in responding to ICANN's decision.
For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.