Ralph Lauren likely lost its bid to run the .POLO gTLD when the community objection filed by the United States Polo Association (USPA or Objector), with support from other polo sports associations and groups, was upheld by an ICC panel.
The panel found that all four required elements of an objection were present, namely that there was 1.) the existence of a clearly delineated “community”; 2.) substantial opposition within that community; 3.) a strong association between the community and string; and 4.) a likelihood of material detriment to the community objecting.
Although Ralph Lauren argued that the objector did not actually represent a “community” under the Guidelines, and that there was not sufficient support in the larger sporting community for the objection, the panel found strong support for the objection in the submitted evidence, noting that it “must have due regard to the letters of other polo associations submitted in support of the USPA’s Objection…”
With respect to the last requirement, “material detriment”, this element must be proven beyond mere allegation that awarding a string to the applicant will be harmful. Ralph Lauren argued that simply not allowing secondary domain registrations in the .POLO registry – i.e., for the objector to register such domains – was not enough to support “material detriment.”
The panel however disagreed with this argument and cited the decision by the GAC to recommend against allowing the .AMAZON registry to proceed to delegation based on objections by the countries of Brazil and Peru who argued that allowing Amazon.com, Inc. to own the registry and shut these countries out of it would harm their communities.
It is hard to imagine how any applicant that wants to use a registry for a .brand good or service will be able to overcome an objection to its registry as long as the objector has standing. If monopolization is enough to support a finding of “material detriment” then the GAC’s decision in .AMAZON is bound to be cited many times over as support.
That advice from the GAC comes without substantive explanation or response to Amazon, Inc. which has argued that the GAC advice is tantamount to a grant of “veto power” over new gTLD applications and that “[p]roviding the GAC with the veto power that this GAC Advice represents, and adoption of such Advice, puts in to play violations of ICANN’s own founding principles and Governing Documents not only for this round of applications, but future rounds as well.”
Further, a finding of “material detriment” as a result of not allowing secondary domain registrations, without more, seems to contravene the requirement that there must be actual evidence showing harm. Here, the panel’s decision seems entirely speculative and the citing of the GAC decision in Amazon raises important questions for those applicants who want to use registries for established brands and marks, and not secondary domain sales.