Amazon.com was the latest winner in the ICANN Independent Review Process IRP. Amazon was one of the largest applicants for new domain names, but its .brand strategy was slowed down when governments opposed its .amazon application. Amazon’s applications had been rejected three years ago after ICANN accepted Governmental Advisory Committee consensus advice.
Amazon beat ICANN on .Amazon gTLD following Africa based new gTLD applicant DCA Trust’s precedent setting case in .Africa IRP. DCA Trust then went to court to contest ICANN’s handling of its application after the IRP.
The Panel in the case declared that that Amazon has established that ICANN’s Board, acting through the NGPC, acted in a manner inconsistent with ICANN’s Bylaws. It also recommended 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.
ICANN has now been urged by Amazon in a letter to the Board on September 7, 2017 (the full text of which may be found below), to swiftly approve the TLDs. The letter also highlights the proactive engagement we attempted with the governments of the Amazonia region over a five year period to alleviate any concerns about using .AMAZON for our business purposes.
Writing on CircleID, Scott Hayden and Brian Huseman Vice Presidents at Amazon stated,
We appreciate the ICANN Board’s careful deliberation of our applications and the IRP decision. But as our letter states, approval of our .AMAZON applications by the ICANN Board is the only decision that is consistent with the bottom-up, multistakeholder rules that govern ICANN and the new gTLD program. We urge the ICANN Board to now approve our applications. An ICANN accountable to the global multistakeholder community must do no less.
The full text of our letter is below.
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Dear Chairman Crocker and Members of the ICANN Board of Directors:
We write as the ICANN Board considers the July 10, 2017 Final Declaration of the Independent Review Process Panel (IRP) in Amazon EU S.à.r.l. v. ICANN regarding the .AMAZON Applications. Because the Panel concluded that the Board acted in a manner inconsistent with its Bylaws, we ask the Board to immediately approve our long-pending .AMAZON Applications. Such action is necessary because there is no sovereign right under international or national law to the name “Amazon,” because there are no well-founded and substantiated public policy reasons to block our Applications, because we are committed to using the TLDs in a respectful manner, and because the Board should respect the IRP accountability mechanism.
First, the Board should recognize that the IRP Panel carefully examined the legal and public policy reasons offered by the objecting governments and found each to be insufficient or inaccurate. The Board should respect the IRP Panel conclusions.
Second, for the last 5 years, Amazon has repeatedly offered to work with the concerned governments to find an amicable solution, offering to explore how we can best use .AMAZON for our business purposes while respecting the people, culture, history, and ecology of the Amazonia region. Although those governments consistently declined our offers, we remain willing to adhere to our July 4, 2013 Public Interest Commitment (PIC) to the .AMAZON Applications. This binding commitment, which provides a practical solution, underscores why acting towards approving these applications immediately is in the public interest.
Finally, the Board last acted in 2014 — before the IANA transition and the resulting changes to ICANN’s Bylaws. The Board should take this opportunity to demonstrate to everyone — including those who objected to the IANA transition on the grounds that it would give too much control to governments — that ICANN is appropriately responsive to the accountability measures that the multistakeholder community required as part of the transition.
Almost one year ago, Chairman Crocker heralded the ICANN multistakeholder community’s dedication and commitment in developing a broadly supported, consensus proposal to enhance ICANN’s transparency and accountability — a proposal that preserved “the existing multistakeholder system while laying the foundation for a more accountable and equitable balance within the ICANN ecosystem.” With the .AMAZON Applications, the Board should publicly and clearly honor this commitment to transparency and accountability. In contrast, permitting the GAC to veto TLD applications that received perfect application evaluation scores (41/41) based upon reasons that are neither well-founded nor merit-based directly contravenes ICANN’s oft-stated and critically important commitment to serving the public interest, as determined by rules agreed to by the multi-stakeholder community.
The ICANN-authorized IRP, the ICANN-selected Community Objection dispute resolution provider, and the ICANN-selected legal expert have rejected every reason put forth for denying the .AMAZON Applications. The Board should not grant Brazil and Peru a fourth, and the GAC a third, opportunity to try to further delay the global public interest benefits associated with .AMAZON. It is now time for the Board to approve the .AMAZON Applications. (A full timeline of our applications is in the Appendix.)
We are aware that governmental pressure on the Board in connection with matters of Internet governance, although unrelated to the .AMAZON Applications, is of concern to ICANN. Such pressure does not change the truth — that for four years Brazil and Peru have been unable to provide legally and factually sound reasons for rejecting the .AMAZON Applications. If the Board yields to such pressure, it will undermine ICANN’s leadership in advancing the multistakeholder approach to Internet governance. In fact, rejection of the .AMAZON Applications after they received perfect application evaluation scores will undoubtedly be used by those stakeholders who were (and are) skeptical of ICANN’s ability to remain independent of governmental overreach to question and challenge ICANN’s ongoing legitimacy.
Board rejection of the .AMAZON Applications may also adversely impact any new gTLD subsequent procedure. Globally, hundreds (if not thousands) of brands have names similar to regions, land formations, mountains, towns, cities, and other geographic places, and the uncertainty of ICANN’s sui generis protection of geographic names will deter these potential .BRAND applicants. Other applicants will also have reason to doubt the certainty and predictability of the gTLD subsequent procedure. After all, if an application that receives a perfect score, clears all third-party objections, passes Geographic Names Panel review, and is the subject of a favorable IRP Panel decision can be rejected because of an arbitrary GAC veto, no gTLD applicant can be certain of its application’s prognosis.
The ICANN Board should now re-evaluate the .AMAZON Applications, mindful of the Panel’s recommendations, and approve the .AMAZON Applications. ICANN’s Bylaws and Core Values mandate such a decision. The Board should not request or consider any further GAC advice on the .AMAZON Applications. The GAC had ample time and opportunity to develop and reach consensus on “well-founded, merits-based public policy reasons for denying [our] applications.” It did not because it could not then, and it cannot now, as recognized by the IRP. The Board also does not need to wait for policy recommendations from the new Subsequent Procedures PDP WG Geographic Names Work Track; that work, while important, does not impact the .AMAZON Applications, which we properly submitted under the Applicant Guidebook.
We request the opportunity to present to the Board and answer questions about the .AMAZON Applications before the Board acts on them, as well as an opportunity to review and respond to any subsequent submission by the GAC, Brazil, Peru, or any other party in connection with the .AMAZON Applications. We filed these applications over 5 years ago. Since then, multiple independent and objective experts have repeatedly found that our .AMAZON Applications are consistent with ICANN rules and existing law. The IRP Panel heard arguments on the length of time the applications have been pending and recommended that the Board should act “promptly.” It is now time for the Board to act promptly and allow our .AMAZON Applications to proceed. That is the only decision that is consistent with the global public interest, the IRP Final Declaration, and the rule of law.
Vice President, Amazon
Vice President, Amazon