Amazon is not backing down from ICANN or the GAC, as earlier this week ICANN published the responses to the Durban GAC Communique, including Amazon’s which stood as perhaps the most forceful and comprehensive.
Although most of the responses were simply boilerplate requests for reconsideration, Amazon filed a
20+ page response that accused the GAC and ICANN of violating International Law, its own New gTLD program rules, and being blatantly discriminatory and biased towards the company. Specifically, Amazon explained that it sees the GAC advice as overstepping its role because that advice contravenes international and national trademark laws, stating:
“While the GAC has an appropriate role to play in providing advice to the ICANN Board on matters related to government policy and international and national laws, the GAC Advice here substantially oversteps those bounds. ICANN’s failure to reject that advice would plainly violate relevant principles of international law and applicable conventions and local law, and therefore violate ICANN’s Governing Documents.” (emphasis added)
Amazon also argued that the Amazon Cooperation Treaty countries are members of the World Trade Organization (WTO) and as WTO members are bound by the TRIPS Agreement which is the principal treaty to look at when assessing geographic denominations and trademark rights in such terms. Under TRIPS Amazon takes the position that none of the ACT countries can claim trademark rights in the term AMAZON and, even if they could, those rights would not cover Internet related services. Amazon also attacked the transparency and stability of the New gTLD procedures arguing that the GAC advice amounts to changing the rules that were carefully created in the Applicant Guidebook and thereby creates uncertainty:
“The ICANN Community and Board underscored the importance of predictability for applicants during discussions about blocking terms that governments determined caused “sensitivities” to a region. The GAC repeatedly requested that the Board and ICANN Community afford the same protections to names that do not appear in the AGB-referenced ISO lists as to names that do appear. To ensure predictability and fairness to applicants – and prevent precisely the sort of ad hoc undermining of ICANN’s rules now playing out here – the Board expressly rejected these requests.” (emphasis added)