Why is the ICANN Board appointing its own Ombudsman for gTLD matters NOW?

Two ICANN boards tasked with reviewing requests for further reconsiderations in the new gTLD programme. This is intended to give applicants a fair evaluation of their requests before any exhaustive solutions are made on the 185, 000 USD applications. Such applications that have to go through the committees include those which GAC objections and are not therefore flagged to proceed to the next status such as extended evaluation or even contract signing.

An analysis into the several applications that have been subjected to reconsideration will show that the board is looking into getting help from other quarters and not the boards alone.

Recent reconsideration requests such as .amazon were recommended for external expert view before any further processing or analysis.

The .merck a Brand TLD being proposed in ICANN’s new gTLD Program, is possibly one of the only brand applications being sought by two different brands. Merck Registry Holdings, Inc. This applicant has filed two applications for the TLD, one with community status and one without.  The other applicant filed a community objection against the application.

The Requester, Merck KGaA, seeks reconsideration of the Expert Determinations, and ICANN’s acceptance of those Determinations, dismissing the Requester’s legal rights objections to Merck Registry Holdings, Inc.’s application for .MERCK and MSD Registry Holdings, Inc.’s application for .MERCKMSD. Merck Registry Holdings, Inc. applied for .MERCK and MSD Registry Holdings, Inc. applied for .MERCKMSD. The Requester, who also applied for .MERCK, objected to these applications and lost.

The Requester claims that the Panel failed to comply with ICANN policies and processes in reaching its determinations. Specifically, the Requester contends that the Panel (i) improperly interpreted the factors governing legal rights objections in light of “wholly inapplicable” Uniform Domain Name Dispute Resolution Policy (“UDRP”) standards; and (ii) failed to “accurately assess critical facts concerning the Parties’ pleadings, leading to mis-attribution of party intent [concerning geo-targeting commitments and a material misrepresentation of the parties’ respective positions.

The Board Governance Committee (BGC) has determined that the panel did not improperly apply UDRP standards in determining whether the applied-for gtlds would be likely to infringe on the requester’s trademark. The therefore BGC concludes that the Requester has not stated proper grounds for reconsideration, and therefore denies Reconsideration Request 14-9. Given that there is no indication that the Panel violated any policy or process in reaching, or staff in accepting the Determinations, this Request should not proceed. If the Requester believes that it has somehow been treated unfairly in the process, the Requester is free to ask the Ombudsman to review this matter.

DotConnectAfrica (DCA) who was among the first applicants to do a reconsideration request were not sent to an External Expert as they requested like .amazon nor did ICANN suggest the path of their own Ombudsman  like .merck case now.  It is not known what the impact of an external expert would have been, but at least it would help to unravel all the questions and controversy surrounding the .africa application.  It appears the usual case of ICANN making its rules as it goes along.

Both the BCG and the new gTLD have denied the reconsideration request for DCA’s .africa application. DCA was contending that an External Expert’s advice should have been sought to look into the GAC erroneous consensus objection. However DCA decided to proceed with the IRP process which is also an alternative method that new gTLD applicants can seek redress.

Its not known what the ICANN ombudsman will determine should the applicant for .merck seek his opinion. The ICANN ombudsman has previously made his decisions but was condemned when he failed to find any matters that could have implicated two ICANN board members on conflict of interest concerning the .africa case. The ICANN ombudsman is an ICANN insider and has not proved to be independent in the past, based on way he treated the DCA case on the ICANN Board.

Its clear that the board committees are seeking more advice from other arms of ICANN to make decisions but will these decisions have a positive influence on how ICANN has managed the new gTLD process?

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