GAC Advice on .AMAZON (and related IDNs)

The NGPC's action today, addressing open items of GAC advice concerning .AMAZON (and related IDNs in Japanese and Chinese), is part of the ICANN Board's role to address advice put to it by the Governmental Advisory Committee (GAC). Article XI, Section 2.1 of the ICANN Bylaws http://www.icann.org/en/about/governance/bylaws#XI permit the GAC to "put issues to the Board directly, either by way of comment or prior advice, or by way of specifically recommending action or new policy development or revision to existing policies." The ICANN Bylaws require the Board to take into account the GAC's advice on public policy matters in the formulation and adoption of the policies. If the Board decides to take an action that is not consistent with the GAC advice, it must inform the GAC and state the reasons why it decided not to follow the advice. The Board and the GAC will then try in good faith to find a mutually acceptable solution. If no solution can be found, the Board will state in its final decision why the GAC advice was not followed.

The action being approved today is to accept the GAC's advice to the ICANN Board contained in the GAC's Durban Communiqué stating that it is the consensus of the GAC that the applications for .AMAZON (application number 1-1315-58086) and related IDNs in Japanese (application number 1-1318-83995) and Chinese (application number 1-1318-5591) should not proceed. The New gTLD Applicant Guidebook (AGB) provides that if "GAC advises ICANN that it is the consensus of the GAC that a particular application should not proceed, this will create a strong presumption for the ICANN Board that the application should not be approved." (AGB § 3.1) To implement this advice, the NGPC is directing the ICANN President and CEO (or his designee) that the applications for .AMAZON (application number 1-1315-58086) and related IDNs in Japanese (application number 1-1318-83995) and Chinese (application number 1-1318-5581) filed by Amazon EU S.à r.l. should not proceed. By adopting the GAC advice, the NGPC notes that the decision is without prejudice to the continuing efforts by Amazon EU S.à r.l. and members of the GAC to pursue dialogue on the relevant issues.

As part of its consideration of the GAC advice, ICANN posted the GAC advice and officially notified applicants of the advice, including Amazon EU S.à r.l. (the applicant for .AMAZON (and related IDNs)), triggering the 21-day applicant response period pursuant to the Applicant Guidebook Module 3.1. Amazon's response to the Board is provided at: http://newgtlds.icann.org/en/applicants/gac-advice/, and the NGPC has considered this response as part of its deliberations on the GAC advice. In its response to the Board, Amazon asserted that the GAC advice should be rejected because: (1) it is inconsistent with international law; (2) the acceptance of GAC advice would be non-transparent and discriminatory, which conflicts with ICANN's governing documents; and (3) the GAC Advice contravenes policy recommendations implemented within the Applicant Guidebook and achieved through international consensus over many years.

The NGPC previously decided to further study and analyze the issues raised by the applicant and the GAC advice, and in a recent iteration of the GAC-NGPC Scorecard [PDF, 371 KB] adopted by the NGPC on 5 February 2014 noted that "ICANN has commissioned an independent, third-party expert to provide additional analysis on the specific issues of application of law at issue, which may focus on legal norms or treaty conventions relied on by Amazon or governments." The independent, third-party expert analysis [PDF, 737 KB] ("Expert Analysis") explores relevant international and local law on geographical indications, related international treaties, and principles of intellectual property law to address the specific issues of application of law at issue. Among other things, the Expert Analysis considers whether the consensus advice issued by the GAC is of such nature as to oblige ICANN to reject the application filed by Amazon, or to the contrary, whether the rules and principles cited by Amazon in its response of 23 August 2013 to the GAC's advice oblige ICANN to approve the applications for .AMAZON (and related IDNs). The Expert Analysis concludes the following:

As regards the application for assignment of the new gTLD '.amazon' filed by the Amazon company:

i) there is no rule of international, or even regional or national, law applicable in the field of geographical indications which obliges ICANN to reject the application;

ii) there is no rule of international, or even regional or national, law applicable in the field of intellectual property and in particular of trade marks or in the field of fundamental rights, which obliges ICANN to accept this application.

The Expert Analysis, which was considered as part of the NGPC's deliberations in adopting this resolution, was provided to the GAC as well as Amazon on 7 April 2014. ICANN provided the Expert Analysis to keep the parties informed and noted that it welcomed any additional information that the parties believed to be relevant to the NGPC in making its final decision on the GAC's advice.

In response to the 7 April 2014 communication to the GAC and Amazon, ICANN received related correspondence, including the following, which were considered as part of the NGPC's action:

Letter [PDF, 66 KB] dated 11 April 2014 from Mr. Fernando Rojas Samanéz (Vice Minister of Foreign Affairs, Peru). The letter comments on the independent, third party advice and requests that the NGPC reject the applications for .AMAZON. The letter comments on the Expert Analysis and requests that the NGPC reject the applications for .AMAZON.

Letter dated 14 April 2014 from Mr. Benedicto Fonseca Filho (Director, Department of Scientific and Technological Themes, Ministry of External Relations, Federative Republic of Brazil) and Mr. Virgilio Fernandes Almeida (National Secretary for Information Technology Policies, Ministry of Science, Technology and Innovation, Federative Republic of Brazil). The letter reiterates Brazil's objection to the applications for .AMAZON.

Letter dated 14 April 2014 from Mr. Scott Hayden (Vice President, Intellectual Property – Amazon). The letter comments on the Expert Analysis and requests that the NGPC allow the applications for .AMAZON to continue to move forward.

The NGPC considered several significant factors during its deliberations about how to address the GAC advice concerning .AMAZON (and related IDNs). The NGPC had to balance the competing interests of each factor to arrive at a decision. The concerns raised by the relevant parties highlight the difficulty of the issue. In addition to the factors highlighted above, the following are among the factors the NGPC found to be significant:

Although the NGPC does not have the benefit of the rationale relied upon by the GAC in issuing its consensus advice in the Durban Communiqué on the applications for .AMAZON (and related IDNs), the NGPC considered the reason/rationale provided in the GAC Early Warning [PDF, 79 KB] submitted on behalf of the governments of Brazil and Peru on 20 November 2012 expressing concern regarding Amazon's application for the .AMAZON gTLD. In the Early Warning, the concerned governments indicated that among other reasons, it was requesting that Amazon withdraw its application because "[g]ranting exclusive rights to this specific gTLD to a private company would prevent the use of this domain for the purposes of public interest related to the protection, promotion and awareness raising on issues related to the Amazon biome. It would also hinder the possibility of use of this domain to congregate web pages related to the population inhabiting that geographical region." The Early Warning also explains that the applied-for string "matches part of the name, in English, of the 'Amazon Cooperation Treaty Organization', an international organization which coordinates initiatives in the framework of the Amazon Cooperation Treaty…."

The NGPC also considered correspondence received on the matter, and takes particular note of correspondence from Amazon dated 4 July 2013 and 3 December 2013, wherein Amazon describes its "attempts to find a mutual resolution with the Governments of Brazil and Peru" concerning the .AMAZON applications, and the public interest commitments it is willing to include as contractually enforceable provisions in the Registry Agreement. Amazon indicates that it is willing to be contractually committed to do the following:

Limit the registration of culturally sensitive terms such as "Amazonia," "Amazonas," and "Amazonica" under the .AMAZON new gTLD to OTCA [Organização do Tratado de Cooperação Amazônica's] and its Member Governments.

Continue to engage in good faith discussions with the OTCA and its member governments to identify any other existing terms of specific cultural sensitivity.

Present a Memorandum of Understanding to ICANN setting out Amazon's non-objection to any future application filed by the OTCA and/or its Member Governments for the terms ".AMAZONIA", ".AMAZONAS", or ".AMAZONICA".

The NGPC considered the community-developed processes established in the Applicant Guidebook, including Section 5.1 of the Applicant Guidebook, which provides that, "ICANN's Board of Directors has ultimate responsibility for the New gTLD Program. The Board reserves the right to individually consider an application for a new gTLD to determine whether approval would be in the best interest of the Internet community. Under exceptional circumstances, the Board may individually consider a gTLD application. For example, the Board might individually consider an application as a result of GAC Advice on New gTLDs or of the use of an ICANN accountability mechanism."

As part of its deliberations, the NGPC's review of significant materials included, but is not limited to the following, letters, materials and documents:

GAC Early Warning:
https://gacweb.icann.org/download/attachments/27131927/Amazon-BR-PE-5808... [PDF, 79 KB]

GAC Beijing Communiqué:
https://gacweb.icann.org/download/attachments/27132037/Final_GAC_Communi... [PDF, 238 KB]

GAC Durban Communiqué:
https://gacweb.icann.org/download/attachments/27132037/Final_GAC_Communi... [PDF, 104 KB]

GAC Buenos Aires Communiqué:
https://gacweb.icann.org/download/attachments/27132037/FINAL_Buenos_Aire... [PDF, 97 KB]

GAC Singapore Communiqué (Amended):
https://gacweb.icann.org/download/attachments/27132037/GAC_Amended_Commu... [PDF, 147 KB]

Applicant Guidebook, Module 3:
http://newgtlds.icann.org/en/applicants/agb/objection-procedures-04jun12... [PDF, 261 KB]

Applicant responses to GAC advice:
http://newgtlds.icann.org/en/applicants/gac-advice/

Letter [PDF, 94 KB] dated 3 March 2013 from Stacey King (Sr. Corporate Counsel – Amazon).

Letter [PDF, 68 KB] dated 4 July 2013 from Stacey King (Sr. Corporate Counsel – Amazon).

Letter [PDF, 465 KB] dated 4 October 2013 from Mr. Ernesto H.F. Araújo (Chargé D' Affaires, a.i., Brazilian Embassy).

Letter dated 3 December 2013 from Stacey King (Sr. Corporate Counsel – Amazon).

Letter dated 24 December 2013 from Mr. Fernando Rojas Samanez (Vice Minister of Foreign Affairs, Peru).

Letter [PDF, 72 KB] dated 10 January 2014 from Stacey King (Sr. Corporate Counsel – Amazon).

Letter dated 3 March 2014 from Mr. Fernando Rojas Samanéz (Vice Minister of Foreign Affairs, Peru).

Letter [PDF, 459 KB] dated 25 March 2014 from Ambassador Robby Ramlakhan (Secretary General, Amazon Cooperation Treaty Organization).

Letter [PDF, 66 KB] dated 11 April 2014 from Mr. Fernando Rojas Samanéz (Vice Minister of Foreign Affairs, Peru).

Letter dated 14 April 2014 from Mr. Benedicto Fonseca Filho (Director, Department of Scientific and Technological Themes, Ministry of External Relations, Federative Republic of Brazil) and Mr. Virgilio Fernandes Almeida (National Secretary for Information Technology Policies, Ministry of Science, Technology and Innovation, Federative Republic of Brazil).

Letter dated 14 April 2014 from Mr. Scott Hayden (Vice President, Intellectual Property – Amazon).

There are no foreseen fiscal impacts associated with the adoption of this resolution. Approval of the resolution will not impact security, stability or resiliency issues relating to the DNS. As part of ICANN's organizational administrative function, ICANN posted the Singapore Communiqué, the Buenos Aires Communiqué, the Durban Communiqué, and the Beijing Communiqué and officially notified applicants of the advice. In each case, this triggered the 21-day applicant response period pursuant to the Applicant Guidebook Module 3.1. Additionally, as noted above, the Expert Analysis was provided to the GAC as well as Amazon on 7 April 2014. ICANN provided the analysis to keep the parties informed and noted that it welcomed any additional information that the parties believed to be relevant to the NGPC in making its final decision on the GAC's advice.