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

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.


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Internationalized Domain Name ,IDN,"IDNs are domain names that include characters used in the local representation of languages that are not written with the twenty-six letters of the basic Latin alphabet ""a-z"". An IDN can contain Latin letters with diacritical marks, as required by many European languages, or may consist of characters from non-Latin scripts such as Arabic or Chinese. Many languages also use other types of digits than the European ""0-9"". The basic Latin alphabet together with the European-Arabic digits are, for the purpose of domain names, termed ""ASCII characters"" (ASCII = American Standard Code for Information Interchange). These are also included in the broader range of ""Unicode characters"" that provides the basis for IDNs. The ""hostname rule"" requires that all domain names of the type under consideration here are stored in the DNS using only the ASCII characters listed above, with the one further addition of the hyphen ""-"". The Unicode form of an IDN therefore requires special encoding before it is entered into the DNS. The following terminology is used when distinguishing between these forms: A domain name consists of a series of ""labels"" (separated by ""dots""). The ASCII form of an IDN label is termed an ""A-label"". All operations defined in the DNS protocol use A-labels exclusively. The Unicode form, which a user expects to be displayed, is termed a ""U-label"". The difference may be illustrated with the Hindi word for ""test"" — परीका — appearing here as a U-label would (in the Devanagari script). A special form of ""ASCII compatible encoding"" (abbreviated ACE) is applied to this to produce the corresponding A-label: xn--11b5bs1di. A domain name that only includes ASCII letters, digits, and hyphens is termed an ""LDH label"". Although the definitions of A-labels and LDH-labels overlap, a name consisting exclusively of LDH labels, such as""icann.org"" is not an IDN."