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Advisory Concerning ESI Litigation
10 November 2000
(10 November 2000) On the morning of 9 November 2000, Economic Solutions, Inc. ("ESI") filed a lawsuit against ICANN in United States District Court in St. Louis, Missouri. In the complaint it filed with the court, ESI seeks, among other things, to prohibit ICANN from establishing a ".biz" or ".ebiz" top-level domain (TLD) or any other TLD that is similar to the country code for Belize, ".bz." ESI claims to have entered into a marketing agreement with the Country of Belize to market the ".bz" country code TLD (ccTLD), and it claims that establishment of a .biz or .ebiz TLD would injure ESI, which allegedly has intellectual property rights in ".bz." In its lawsuit, ESI also seeks to cause the transfer of the administration of the ".bz" TLD from the current administrators to ESI.
Later that same day, ICANN opposed, on multiple grounds, ESI's motion for temporary restraining order. Following the hearing, the Court asked the parties to file additional briefs and supporting papers on November 13, 2000.
ICANN believes that ESI's lawsuit is without merit. Procedurally, ICANN objects to being required to litigate the matter in Missouri. ICANN also denies that ESI has intellectual property rights in the ".bz" ccTLD. That ccTLD has been established for the operation in the benefit of the Internet community in Belize under the trusteeship of managers designated by the IANA (ESI is not the designated manager or the designated sponsoring organization). It is important to note that ccTLD matters are governed by the longstanding principle, noted by Jon Postel in RFC 1591, that "Concerns about 'rights' and 'ownership' of domains are inappropriate. It is appropriate to be concerned about 'responsibilities' and 'service' to the community."
ICANN believes that community-based discussion, through the ICANN process, about what TLDs should be established should be allowed to proceed without interference. Legal precedents refute the claim that TLDs enjoy trademark protection. The United States Patent and Trademark Office has made clear that a top-level domain name, when used as a registry under which lower-level domain names are registered, does not function as a source identifier subject to service-mark rights. This conclusion has been followed in court, and is consistent with the advice of ICANN's Governmental Advisory Committee. Accordingly, ICANN intends to defend vigorously the Internet community's consensus-based process, with the hope that it leads to establishment of TLDs according to the community's wishes.
