ICANN has announced that it is free to delegate the .Africa domain to ZACR pending the court case resolution. This action mirrors its signing of a contract in the middle of an Independent Accountability Hearing (IRP) that ICANN initiated.
This step was taken by ICANN after a recent California court decision to deny DotConnectAfrica’s Motion for Preliminary Injunction to stop the delegation of the .AFRICA generic top-level domain (gTLD) to ZA Central Registry (ZACR), after DCA’s case was remanded from Federal court due to lack of jurisdiction.
It is clear from the recent ruling that the court heavily relied on the Federal District Court Order in the Ruby Glen, LLC v ICANN matter, wherein the Court held that the “covenant not to sue” in the Guidebook is enforceable.
The Superior Court Judge stated in the DCA vs ICANN that the court has considered carefully the excellent arguments of counsel and the tentative ruling will remain the ruling on the motion……DCA’s claims against ICANN for fraud and unfair business practices are likely to be barred. As a result, DCA cannot establish that it is likely to succeed on the merits.”
The judge made the ruling, however it does not yet address or resolve the merits of the claims made by the plaintiff DotConnectAfrica but merely states that DCA is unlikely to win its suit due to the covenant it signed.
Last year the Judge R. Gary Klausner at the Federal Court granted Plaintiff’s Ex Parte Application for TRO and a Preliminary Injunction thereby enjoining defendant ICANN from issuing the.Africa gTLD until the Court decides Plaintiff’s Motion for Preliminary Injunction, further the judge ruled,
“Upon review of the parties’ arguments, the Court finds serious questions going to the merits. Plaintiff has demonstrated that once the gTLD is issued, it will be unable to obtain those rights elsewhere.”
An IRP panel in 2015 had ordered ICANN to continue to the end of the gTLD process for DCA’s bid for exclusive rights to domain names under the names “.Africa”. However, ICANN paid lip service to the decision and went to reevaluate DCA’s endorsement whistle DCA argued that subsequent forced evaluation action by ICANN was little more than a sham – and the Federal court agreed that the evidence suggests that ICANN intended to deny DCA’s application based on pretext.
In what may appear to be a poor judgment of the state court that departs from a previous Judges ruling in Federal court, it is yet to be seen how the case unfolds. Therefore, while .Africa may be delegated, it appears that the merits of the case will be deliberated at a later date and may therefore roll back any progresses made by ICANN. According to the state court who denied the injunction to DCA, The judge stated that although the public also has an interest in having the .Africa gTLD properly awarded through a fair and transparent application process, this concern does not apply to the interim harm analysis because, in the event that DCA ultimately prevails in this action, the gTLD can be re-delegated.