United States: Name.space lost again in its attempt to be included in the ICANN root.

In a judgment of July 31, 2015, the United States Court of Appeals for the Ninth Circuit (Name.space, Inc., v. Internet Corporation for Assigned Names and Numbers, Case No. 13-55553, 2015-07-31) ) upheld the judgment delivered in first instance dismissing Name.space’s application, which also purported to force the integration of its domains in the IANA root.

As a matter of fact, with the aim of expanding its domains, Name.space which already operated various TLDs in a parallel but hardly accessible root, had tried integrating other internet roots more accessible to the general public.

According to Name.space, integrating the root server of IANA (Internet Assigned Numbers Authority), the authority responsible for managing IP addressing on the internet, seemed to be the best strategy to make its domains accessible to as many people as possible.

The latter had firstly applied to the registration office NSI (Network Solutions) in 1997 for the integration of its domains in the root.

Following NSI’s refusal, Name.space had then sued NSI for anti-trust. Name.space had ultimately lost its case before the court of first instance as well as on appeal, on the ground that NSI was acting under a government contract, to which anti-trust law does not apply.

After this failure, Name.space then decided to apply to ICANN.

At the launching in 2000 of a round of introduction of domains by ICANN against payment of $50,000 per unit, Name.space submitted its proposal for 118 domains. Like for many other candidates, ICANN rejected Name.space’s application.

During the second round in 2012, ICANN had launched a similar procedure for the price of $185,000 per domain. However, Name.space could not apply, being unable to pay for 118 of its domains at such price.

On 17 October 2012, Name.space then decided to sue ICANN before the District Court of California for anti-competitive conspiracy, abuse of its dominant position, anti-trust, and infringement of Name.space’s trademark rights on its domains.

When its claim was dismissed by the District Court in 2013, Name.space filed an appeal with the United States Court of Appeal of the Ninth Circuit which on July 31, 2015, ruled in favour of ICANN.

The court of appeal supports its decision on the ground that ICANN established plausible business reasons for the requirement of higher prices, and that it had not hindered other operators from applying.

There was no evidence that ICANN was intentionally trying to harm Name.space in its endeavour.

The Court of Appeal, only ruling on issues regarding the application of law at this stage, did not decide on the issue of trademark infringement since the domains were not active yet at the time of the first judgement.

These domains being active now, Name.space could in theory file a new complaint for trademark infringement. However, it is highly unlikely that such an endeavour would turn out to be successful since the USPTO clearly asserted that the domains could not be protected as trademarks. (cf. Trademark Manual of Examining Procedure, 1215.02(d)).

It comes as no surprise that Name.space failed once again in its battle to include its domains in the IANA root.