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Second Advisory Concerning ESI Litigation

13 November 2000

(13 November 2000) In a 10 November 2000 Advisory, ICANN reported that Economic Solutions, Inc. (ESI) had filed suit in United States District Court in St. Louis, Missouri, and sought a temporary restraining order from that court 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."

On 13 November, the court denied ESI's request for a temporary restraining order. The court determined that ESI had not demonstrated that ICANN was subject to being sued in Missouri. The court also determined that ESI had failed to back up its claims on the merits:

Neither has plaintiff [ESI] demonstrated a likelihood of success on the merits of the Lanham Act and unfair competition claims, given the uncertain status of the claimed property rights in the ".bz" domain designation, the prospective and uncertain nature of possible establishment or use of assertedly competing TLDs, and questions concerning whether defendant's [ICANN's] role in the feared events could render it, as opposed to others actually employing the ".biz" or ".ebiz" designations, liable for false designation or unfair competition. As to plaintiff's tortuous interference claim, at this time defendant's proffered grounds for declining to take the administrative actions sought by plaintiff do not suggest a likelihood of success on the merits of plaintiff's claim. Furthermore, the tortuous interference claim and the allegations underlying it are unrelated to the substance of the TRO plaintiff seeks.

ICANN applauds this decision preserving the integrity of the ongoing consensus-based process for moving toward the establishment of new TLDs.