The Internet Corporation for Assigned Names and Numbers (ICANN) has been sued by the disgruntled new generic Top Level Domain (gTLD) applicant, DotConnectAfrica, in order to prevent the delegation of the new gTLD .AFRICA. This is in spite of the fact that all new gTLD applicants effectively signed away the right to sue ICANN over the new gTLD program when they applied for a new gTLD as per the “Top-Level Domain Application – Terms and Conditions” as set out in the New gTLD Applicant Guidebook (AGB).

The background to the DotConnectAfrica v. ICANN case is a long and complicated story. Before the new gTLD program started accepting applications for new gTLDs, DotConnectAfrica was one of the many potential applicants making a lot of noise about its vision for the program and their chosen gTLD. Early on in the game, DotConnectAfrica set out its stall that it wanted to apply for .AFRICA and was championed the high levels of support it had for its application for .AFRICA from the African Union Commission (AUC) and the United Nations Economic Commission for Africa.

However, waiting in the wings was a rival applicant for .AFRICA, namely ZA Central Registry (ZACR), the Registry Operator for .ZA, the country code Top Level Domain (ccTLD) for South Africa. Prior to the opening of the new gTLD application round, the AUC withdrew its support for DotConnectAfrica’s application and transferred its allegiance to ZACR’s application.

The question of applicant support from bodies such as the AUC was crucial in the new gTLD application process for a string like .AFRICA. This is because .AFRICA was designated by ICANN as a “geographic name”. As part of the new gTLD evaluation procedures, all new gTLD applications received were reviewed by the Geographic Names Panel to determine “whether each applied-for gTLD string represents a geographic name, and verify the relevance and authenticity of the supporting documentation where necessary.”

Furthermore, the AGB states that:

“For any application where the GNP determines that the applied-for gTLD string is a geographic name requiring government support, the GNP will confirm that the applicant has provided the required documentation from the relevant governments or public authorities and that the communication from the government or public authority is legitimate and contains the required content.”

One of ICANN’s criteria for determining what would be considered a geographic name was set out in the AGB at Section 2.2.1.4.2:

“An application for a string listed as a UNESCO region or appearing on the “Composition of macro geographical (continental) regions, geographical sub-regions, and selected economic and other groupings” list.”

The string AFRICA is indeed included on these lists. The AGB continues:

“In the case of an application for a string appearing on either of the lists above, documentation of support will be required from at least 60% of the respective national governments in the region”

Thus, support from the AUC for an application for .AFRICA was mission critical for DotConnectAfrica and to lose such support effectively left its application dead in the water. Regardless, DotConnectAfrica decided to proceed with its application for .AFRICA and duly filed an application with ICANN.

Unfortunately, DotConnectAfrica’s application for .AFRICA caught yet another bullet when it fell afoul of the following rule concerning geographic names in the AGB:

“There may be no more than one written statement of objection to the application from relevant governments in the region and/or public authorities associated with the continent or the region.”

DotConnectAfrica’s application for .AFRICA received 17 Government Advisory Committee (GAC) Early Warnings. These came from 16 national governments and one from the AUC. Finally, in what many saw as the final nail in the coffin for DotConnectAfrica was the GAC Advice issued in the April 2013 Beijing Communique which said that the GAC had reached a consensus position to object to DotConnectAfrica’s application for .AFRICA and that it should not proceed.

As a result of this, DotConnectAfrica’s application was rejected by ICANN before it could complete the Initial Evaluation process and be assessed by the Geographic Names Panel. In any event, due to the lack of governmental support for its .AFRICA application it was virtually certain that it would have failed to meet the Geographic Names Panel evaluation criteria. Meanwhile, the application filed by ZACR for .AFRICA and supported by the AUC continued through the ICANN Evaluation processes and actually executed a Registry Agreement with ICANN to operate .AFRICA.

However, DotConnectAfrica did not accept ICANN’s rejection of its application and immediately availed itself of the various ICANN Accountability Mechanisms, which ultimately led them to file an Independent Review Process (IRP) seeking to have ICANN’s rejection of their application overturned on the grounds that ICANN went against its own bylaws in rejecting its application. This also prevented .AFRICA from being delegated to the root as ICANN put the process on hold due to the pending IRP.

Some industry commentators regarded the filing of the IRP as a futile move and it was felt that DotConnectAfrica would lose its IRP. However, contrary to expectations, it actually won the IRP. The IRP Panel ruled that ICANN had not followed its own bylaws of transparency, fairness and neutrality when accepting the GAC Advice against DotConnectAfrica’s application. As a result of this the IRP Panel declared that DotConnectAfrica’s application for .AFRICA should be allowed to continue through the Initial Evaluation process and be examined by the Geographic Names Panel.

This process reached its conclusion in February 2016 with DotConnectAfrica’s application for .AFRICA failing the ICANN evaluation processes due to the Geographic Names Panel finding that there was insufficient support for DotConnectAfrica’s application. This resulted in ICANN placing the application on a status of “Will Not Proceed”.

Here is where the story for most applicants would end. However, a month prior to its application failing the evaluation process, DotConnectAfrica filed a lawsuit against ICANN in California claiming that ZACR’s application for .AFRICA was “fraudulent” and seeking monetary damages from ICANN. Again, this had the useful side effect of yet again preventing the delegation of .AFRICA to ZACR.

This action on the part of DotConnectAfrica would seem to be breach of clause 6 of the “Top-Level Domain Application – Terms and Conditions” for the New gTLD Program. It is stated:

“Applicant agrees not to challenge, in court or in any other judicial fora, any final decision made by ICANN with respect to the application, and irrevocably waives any right to sue or proceed in court or any other judicial fora on the basis of any other legal claim against ICANN and ICANN affiliated parties with respect to the application. Applicant acknowledges and accepts that Applicant’s non-entitlement to pursue any rights, remedies, or legal claims against ICANN or the ICANN affiliated parties in court or any other judicial fora with respect to the application shall mean that applicant will forego any recovery of any application fees, monies invested in business infrastructure or other startup costs and any and all profits that applicant may expect to realize from the operation of a registry for the TLD.”

Based on the above, it would seem that all gTLD applicants have effectively signed away their rights to take court action against a decision of ICANN with regard to their applications. However, this did not prevent DotConnectAfrica from filing their lawsuit in California.

In its response to the DotConnectAfrica lawsuit, ICANN pointed out the above clause in the “Top-Level Domain Application – Terms and Conditions”.

However, the judge who is deciding the lawsuit has issued a ruling in favour of DotConnectAfrica, saying that new gTLD applicants do have the right to sue ICANN if their claims are based on fraud. The judge found that clause 6 was likely unenforceable under Californian law which states that “[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property or another, or violation of law, whether willful or negligent, are against the policy of the law.”

In light of this, the judge ruled that DotConnectAfrica do have the right to sue. It remains to be seen if this will be an open invitation for other unhappy new gTLD applicants to start preparing other lawsuits claiming fraudulent actions in order to circumvent clause 6.

In any event, the .AFRICA saga continues and Anchovy News will continue to monitor the situation as it develops.

First published on Anchovy News: Anchovy® is our a comprehensive and centralised online brand protection service for global domain name strategy, including new gTLDs together with portfolio management and global enforcement using a unique and exclusive online platform developed in-house.