Panelist in .basketball decision uses different interpretation of guidelines to come up with a different conclusion than panelist in .sport.
An International Chamber of Commerce panelist has determined that community objections filed against two applications for .basketball have failed. Comparing this decision to a recent one upholding a community objection to .sport, it appears we may have another case of inconsistent rulings.
The .basketball community objection was filed by Fédération Internationale de Basketball (FIBA), which has applied for .basketball. If filed cases against the two rival applicants, Famous Four and Donuts. The cases were consolidated.
In the .sport case, SportAccord filed the complaint against rival applicant Famous Four and won.
In both cases, the panelists agreed with the objectors on everything up to the part about delegating the string to the applicants having a likelihood of material detriment on the community. That’s where the panelists differed.
First, let’s take a look at what FIBA said would happen if the applicants got .basketball:
* Ambush marketing
* Ticket scalping
* Cybersquatting and domaining
* Selling unofficial tournament and team merchandise, especially around tournaments
* Association between .basketball and gambling
* Loss of control educating about antidoping campaigns
Now, here’s what SportAccord argued would happen for .sport:
* Ambush marketing
* Ticket scalping
* Cybersquatting, typo-squatting and brand-jacking
* Illegal or undesirable gambling
* loss of credibility of community-based governance models and community-based communication policies for anti-doping, anti-drug, anti-racism
* misuse of sport themes for pornography
These look very similar, don’t they? We don’t know exactly what “proof” each party submitted, but I suspect it was fairly similar.
Yet the panelist for .basketball determined FIBA didn’t provide evidence of a likelihood of material detriment. The panelist in the .sport decision determined that SportAccord did.
Actually, that’s not quite what happened. The panelists came to their conclusions using two different interpretations of the standards. Here’s panelist Jennifer Kirby on .basketball:
What is material to my determination is the Objector’s failure to put on evidence proving that the Application creates a likelihood of material detriment to a significant portion of the Basketball Community. Rather, the Objection sets forth a series of speculative allegations with no evidence to support a finding that any material detriment to the Basketball Community would likely come to pass if “.BASKETBALL” were delegated to the Applicant. This is insufficient to meet the Objector’s burden of proof on this issue.
In other words, FIBA threw out a bunch of conjecture about what might happen, but didn’t show a likelihood of material detriment, which is the standard in the guidebook.
Compare that to panelist Dr. Guido Santiago Tawil in .sport:
First, the Appointed Expert finds that the ICANN Guidebook does not call for “actual damage” for an objection to be accepted. It establishes a lower bar, namely a “likelihood of material detriment”, logical consequence of the impossibility of assessing any damage when the Applicant has yet to start operating the gTLD string.
Therefore, the standard that the Appointed Expert should apply to this issue is the “chance” that detriment will occur, which differs from the standard of “actual damage” invariably applied in litigation or arbitration. In other words, the standard of a “likelihood of material detriment” is, in the Appointed Expert’s opinion, equivalent to future “possible” damage.
Did you catch that? Kirby used the guidebook’s language about showing a likelihood of material detriment. Tawil interpreted that to be a “chance” of detriment, or “possible” detriment.
Tawil is correct that you can’t prove actual damages. But he applies a completely different requirement in .sport than Kirby used in .basketball.
Panelist Jennifer Kirby basically agreed with FIBA’s complaint until it came to the issue of whether the applicants getting .basketball would cause a likelihood of material detriment to the basketball community.
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