By Doug Isenberg
Any institution that believes a potential new top-level domain doesn’t represent its community may want to consider filing a “Community Objection.” Here are some frequently asked questions about this process.
What is the definition of a “Community Objection”?
According to ICANN’s gTLD Applicant Guidebook, a “Community Objection is an objection based on “substantial opposition to the gTLD application from a significant portion of the community to which the gTLD string may be explicitly or implicitly targeted.”
The Guidebook includes four important tests for panelists deciding these objections, so those who file a Community Objection should become very familiar with these four tests and draft their objections accordingly.
Who can file a Community Objection?
The Guidebook says: “Established institutions associated with clearly delineated communities are eligible to file a community objection.” To qualify for standing for a community objection, an objector must prove both of the following: (1) it is “an established institution” and (2) it “has an ongoing relationship with a clearly delineated community.” The Guidebook contains further details about each prong of this definition, so any institution considering filing an objection should review the criteria to carefully to help ensure that it meets the standing requirement before filing.
ICANN’s “Independent Objector” also may file a community objection against a gTLD application (but only if at least one comment in opposition to the application already has been made).
When can a Community Objection be filed?
The Guidebook says that “[t]he objection filing period will open after ICANN posts the list of complete applications… and will last for approximately 7 months.” Because ICANN announced the list of complete applications on June 13, 2012, it would appear that the last date for filing objections would be approximately January 12, 2013. Note that there will be “a two-week window of time between the posting of the Initial Evaluation results and the close of the objection filing period.”
Where are Community Objections filed?
Community Objections will be administered by the International Center of Expertise of the International Chamber of Commerce (ICC), which has published a detailed website about the process here: http://www.iccwbo.org/court/expertise/id48204/index.html
What rules are applicable to a Community Objection?
The ICC has said that it will administer objections under the ICC Rules for Expertise and supplemented by a Practice Note on the Administration of Cases under the Procedure under the New gTLD Dispute Resolution Procedure.
What language is used for proceedings under Community Objections?
All objections must be filed in English.
What are the fees for filing a Community Objection?
In addition to any legal or other fees that an objecting party may face, ICC requires an objector pay a non-refundable filing fee of 5,000 euros (approximately US$6,250) plus, within 10 business days of “constituting the Expert Panel,” an estimate of the total costs of the procedure. The total costs of the procedure include the fees and expenses of the expert. The fees are 450 euros (approximately US$562) per hour “unless decided otherwise by the Centre after consultation with the parties”; and the expenses are estimated between 12,000 euros (approximately US$15,000) for a one-expert panel and 17,000 euros (approximately US$21,255) for a three-expert panel.
Note that a gTLD applicant must also pay the same fees to ICC. If an applicant fails to do so, the objection will prevail by default.
As with all gTLD objections: “Upon the termination of the proceedings, after the Panel has rendered its Expert Determination, the DRSP [Dispute Resolution Service Provider, that is, ICC] shall refund to the prevailing party, as determined by the Panel, its advance payment(s) of Costs.”
What should an objector include in filing a Community Objection?
ICANN’s gTLD Applicant Guidebook provides very little helpful guidance about what an objector should include in its filing. Specifically, the Guidebook says that objections should include “[a] statement giving the specific ground upon which the objection is being filed” and “[a] detailed explanation of the validity of the objection and why it should be upheld.” However, the Guidebook includes four tests for panelists to “determine whether there is substantial opposition from a significant portion of the community to which the string may be targeted.” For an objection to be successful, the objector must prove the following:
- The community invoked by the objector is a clearly delineated community; and
- Community opposition to the application is substantial; and
- There is a strong association between the community invoked and the applied-for gTLD string; and
- The application creates a likelihood of material detriment to the rights or legitimate interests of a significant portion of the community to which the string may be explicitly or implicitly targeted.
The Guidebook contains further detail on each of these four tests, so objectors should familiarize themselves with these tests and draft their objections with these tests in mind.
What is the maximum length of an objection filed under a Community Objection?
As with all objections to new gTLDs, objections based on a Community Objection is limited to 5,000 words or 20 pages, whichever is less (excluding attachments).
Does a gTLD applicant have to respond to a Community Objection?
No. An applicant can negotiate a settlement to an objection (resulting in withdrawal of the application or the objection), file a response (see details below) or withdraw (in which case the objector will prevail by default).
If an applicant files a response to a Community Objection, when must it be filed, what should it include and how long can it be?
A response must be filed within 30 calendar days of ICC’s notice of the objection. According to the Guidebook, the response should include “[a] point-by-point response to the claims made by the objector” and “[a]ny copies of documents that it considers to be a basis for the response.” Like objections, responses are limited to 5,000 words or 20 pages, whichever is less (excluding attachments).
Also, as noted above, applicants must pay a filing fee (as well as expert fees and expenses) to ICC in the case of Community Objections.
How are documents filed, and will in-person hearings be held for Community Objections?
Documents should be filed electronically, and, as in all objection proceedings, “[d]isputes will usually be resolved without an in-person hearing. The panel may decide to hold such a hearing only in extraordinary circumstances.” Note that this language is similar to that set forth in the Rules for the Uniform Domain Name Dispute Resolution Policy (UDRP) (which says there shall be no in-person hearings except “as an exceptional matter” as decided by a panel), and that no in-person hearings have ever been held under the UDRP (which went into effect in 1999).