• Amazon calls on ICANN to “immediately approve” ‘.amazon’ gTLD
  • Dispute with governments centres on geographic connotation of term
  • Outcome could have significant impact for future ‘.brand’ applicants

Amazon has called on ICANN to “immediately approve” its application for the ‘.amazon’ gTLD, noting that prompt action is necessary because “there is no sovereign right under international or national law to the name ‘Amazon”’, with an Independent  Review Process Panel (IRP) having previously ruled that ICANN acted in a manner inconsistent with its bylaws when rejecting the company’s application. The move to end the stand-off over the string is one that all brands should monitor.

As a recap, the company’s application for ‘.amazon’ was initially deemed by an ICANN Geographic Names Panel to not be a “geographic name [under the criteria] contained in the Applicant Guidebook”, meaning that it did not require governmental support. However, in November 2012, the GAC representatives of Brazil and Peru issued an early warning, arguing that the application should not proceed because the term related to a geographic area.

Amazon notes that it tried to find a solution with the two governments – for instance offering to block terms in the string that represent governmental organisations and to support future applications for ‘.amazonas’, ‘.amazonia’, or ‘.amazonica’. However, these proposals were not accepted and the dispute intensified. In May 2014, an ICANN New gTLD Program Committee (NGPC) resolution stated that the ‘.amazon’ application (and its Chinese and Japanese translations) “should not proceed” – noting that “if the GAC advises ICANN that it is the consensus of the GAC that a particular application should not proceed, this will create a strong presumption for the ICANN Board that the application should not be approved".

In 2016, Amazon appealed and in July this year an independent review panel gave the application the green light. Specifically, it said that the string “would not pose a material detriment to the region or the people who inhabit the geographic region proximate to the Amazon River” and noted that the NGPC-commissioned legal expert had concluded that Brazil and Peru had no legally recognised right under international or national law to the name ‘amazon’. The panel additionally noted that Amazon was denied the opportunity to argue its case and concluded that the ICANN board “cannot simply accept GAC consensus advice as conclusive. The GAC has not been granted a veto under ICANN’s governance documents”.

Reflecting the above, in a letter published last night – co-signed by company vice presidents Scott Hayden and Brian Huseman – Amazon heaped pressure on the ICANN board to get the application rolling, stating that the board should “respect the IRP accountability mechanism” and that “there are no well-founded and substantiated public policy reasons to block our applications”.

Strategically, the letter also positions the handling of its application as a stress test of ICANN’s governance model, and highlights the opportunity the dispute creates to “demonstrate to everyone – including those who objected to the IANA transition on the grounds that it would give too much control to governments – that ICANN is appropriately responsive to the accountability measures that the multi-stakeholder community required as part of the transition”.

Crucially, given the historical back and forth over the string (and acknowledging that “governmental pressure on the board in connection with matters of Internet governance… [is] of concern to ICANN”), the company is calling on ICANN to put a permanent end to the discussions and “not grant Brazil and Peru a fourth, and the GAC a third, opportunity to try to further delay the global public interest benefits associated with ‘.amazon’.” It concludes: “We filed these applications over five years ago. Since then, multiple independent and objective experts have repeatedly found that our ‘.amazon’ applications are consistent with ICANN rules and existing law. The IRP Panel heard arguments on the length of time the applications have been pending and recommended that the board should act ‘promptly’. It is now time for the board to act promptly and allow our ‘.amazon’ applications to proceed. That is the only decision that is consistent with the global public interest, the IRP final declaration, and the rule of law.”

The issue of geographic names has long been a hot button issue in the new gTLDs rollout, and Amazon has not been the only impacted party. An application by US clothing company Patagonia for its name as a TLD was withdrawn following government objections (Patagonia also being the name of a region in South America), while the application for  ‘.spa’ was the subject of a Belgium  government objection. Crucially, handing Amazon its application will set a precedent that could impact more brands in the future.

As Amazon argues in the letter, ejection of the string could “adversely impact any new gTLD subsequent procedure. Globally, hundreds (if not thousands) of brands have names similar to regions, land formations, mountains, towns, cities, and other geographic places, and the uncertainty of ICANN’s sui generisprotection of geographic names will deter these potential ‘.brand’ applicants. Other applicants will also have reason to doubt the certainty and predictability of the gTLD subsequent procedure.”

Back in 2015, J Scott Evans (while serving as the president of INTA), told World Trademark Review that moves to place restrictions on the internet that don’t align with any international or local laws are “really troubling”, arguing: “We need to be very clear that this sort of mechanism is not going to be acceptable. That is not multi-stakeholderism.” Two years on, this remains an issue and Amazon’s move to push for resolution is a positive one. All eyes will now be on ICANN to see if it progresses the string or opts to further prolong this long-running dispute.