The Internet Corporation for Assigned Names and Numbers (ICANN) says it is now free to proceed with the delegation of the .Africa generic top-level domain (gTLD) to ZA Central Registry (ZACR) following the decision of a California Superior Court denying DotConnectAfrica’s (DCA’s) second motion for a preliminary injunction to stop the delegation of the domain.
The Superior Court of California, sitting in the County of Los Angeles Central District in the United States, in a ruling on February 3, 2017, denied DCA’s motion for a preliminary injunction and held that “the delay in the delegation of the .Africa gLTD is depriving the people of Africa of having their own unique gTLD.”
ICANN is a California-based not-for-profit public benefit corporation that oversees the technical coordination of the Internet’s domain name system around the world.
In 2012, ICANN launched the “New gTLD program” in which it invited interested parties to apply to be designated the operator of their chosen gTLD. The operator would manage the assignment of names within the gTLD and maintain its database of names and IP addresses.
In March 2012, DCA, an organization formed with the charitable purpose of advancing information technology education in Africa and providing a continental Internet domain name to provide access to Internet services for the people of Africa, applied to ICANN for the delegation of the .Africa gTLD
ZACR, a South African non-profit company which was formed to promote open standards and systems in computer hardware and software, also applied to be the operator of .Africa.
In 2013, ICANN’s Government Advisory Committee (GAC) issued an advice that DCA’s application should not proceed due to issues with regional endorsements. ICANN accordingly rejected DCA’s application based on the GAC’s advice, while ZACR’s application continued.
Thereafter, DCA challenged ICANN’s decision and filed a request for review by an Independent Review Process (IRP) Panel, a form of alternative dispute resolution provided for by the ICANN bylaws.
On July 9, 2015, the IRP Panel issued a Final Declaration in favour of DCA and concluded that ICANN should “continue to refrain from delegating the .Africa gTLD and allow DCA Trust’s application to proceed through the remainder of the new gTLD application process.
In the same month, July 2015, ICANN placed DCA’s application back in the geographic names evaluation phase but later concluded that DCA’s application was insufficient to proceed past this phase.
In January 2016, after it found out that ICANN would reject its application, DCA filed a suit against ICANN and while the case was pending before the District Court, DCA moved for and was granted a temporary restraining order and subsequently a preliminary injunction prohibiting ICANN from delegating the rights to .Africa until the case was resolved.
ZACR then filed a motion to reconsider the preliminary injunction order which ICANN joined. The motion for reconsideration was denied.
But on October 19, 2016, the District Court remanded the case to the Superior Court of California due to lack of jurisdiction, upon which DCA moved for the same preliminary injunction that the District Court previously granted. The motion was heard on December 22, 2016 and argued at length, after which the Court declined to grant the motion.
DCA then moved another motion for the same preliminary injunction in substantially the same terms with the only difference being that while DCA initially sought the injunction under its ninth cause of action for declaratory relief, the second motion was moved under the alternative causes of action for intentional misrepresentation and unfair business practices.
Ruling on the motion, Judge Howard L. Halm noted that DCA has not provided any new evidence of harm that was not considered by the court in the earlier motion for preliminary injunction.
He observed that the .Africa gTLD can be re-delegated DCA if it prevails in the suit, adding that this fact is not disputed by DCA although DCA has argued without support supporting evidence that the procedure for gTLD re-delegation is uncertain.
On the contrary, the judge said, the evidence before the court reflects that re-delegation is not uncommon and has occurred numerous times, adding that ICANN has an established procedure for re-delegating a gTLD, which is set out in a published manual. Accordingly, he held that there was no potential for irreparable harm to DCA and that any interim harm to DCA can be remedied by monetary damages, as requested in DCA’s complaint.
Judge Halm noted that in constrast to the speculative nature of DCA’s harm, ZACR presented evidence in the form of a detailed spreadsheet prepared by its finance section demonstrating that ZACR is incurring significant financial costs with no attendant benefits as a result of the delay in delegation of the .Africa gTLD.
He held that the public interest also weighs in favour of denying the injunction because “the delay in the delegation of the .Africa gLTD is depriving the people of Africa of having their own unique gTLD.”
Judge Halm noted that although the public also has an interest in having the .Africa gLTD properly awarded through a fair and transparent application process, this concern does not apply tot he interim harm analysis because in the event that DCA ultimately prevails in the action, the gTLD can be re-delegated.
The judge also upheld ICANN’s contention that DCA is unlikely to win the substantive action because among the terms and conditions that DCA acknowledged and accepted by submitting a gTLD application, as a covenant barring all lawsuits against ICANN arising out of its evaluation of new gTLD applications.
