US Circuit Court Upholds ICANN's Defense of the New gTLD Program

31 July 2015

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Los Angeles, California... The United States' Ninth Circuit Court of Appeals has affirmed the dismissal of antitrust and other claims against ICANN made by a company called name.space, related to ICANN's new generic Top Level Domain (gTLD) Program, in an opinion published today [PDF, 116 KB].

In 2013, a federal district court dismissed all of name.space's claims, and today the Ninth Circuit affirmed that dismissal in all respects. name.space alleged that ICANN violated the Sherman Act, and various trademark and other laws, in establishing the New gTLD Program and setting the application fee for new gTLD applications at US$185,000. name.space also suggested that ICANN should set aside names found in name.space's “alternative internet.”

The plaintiff claimed that the rules and procedures governing the 2012 New gTLD Program Application Round were the result of an illegal conspiracy between ICANN, its board members and domain-name industry insiders, citing U.S. antitrust law (specifically Section 1 of the Sherman Act).

"We are pleased that the Ninth Circuit agreed with the dismissal of the claims against ICANN in this matter", said John Jeffrey, ICANN's General Counsel and Secretary. "The rules and procedures governing the New gTLD Program were created through a global, inclusive, open and multistakeholder process, following a bottom-up policy development process leading to consensus-based policy recommendations. Accordingly, the Court found it could not "infer an anticompetitive agreement' from the facts presented in this case."

In finding in favor of ICANN, the Court determined that “ICANN is not a competitor” in the three relevant markets the plaintiff identified as the basis of its monopolization claim (citing the tests from Section 2 of the Sherman Act):

  1. The market to act as a TLD registry;
  2. The international market for domain names;
  3. The market for blocking or defensive registration services.

Finally, the Court also found that name.space's trademark claims were not ripe, and its common law claims did not allege sufficient facts to be able to state a claim against ICANN.

ICANN was represented in this matter by Jones Day.