ICANN has been sued by the disgruntled new generic Top Level Domain (gTLD) applicant, DotConnectAfrica, in order to prevent the delegation of the new gTLD .AFRICA.
DotConnectAfrica has alleged that a rival application for .AFRICA which was filed by ZA Central Registry (ZACR) was fraudulent and sought monetary damages from ICANN. ZACR filed a motion to dismiss the claims against it and the court has granted ZACR’s request. The judge also indicated that there may be the possibility that DotConnectAfrica’s application could proceed to delegation. DotConnectAfrica’s decision to bring court action against ICANN in relation to the new gTLD program was surprising given that all gTLD applicants have effectively signed away their rights to take court action against a decision of ICANN with regard to their applications as set out in clause 6 of the “Top-Level Domain Application – Terms and Conditions” for the New gTLD Program.
However, this did not prevent DotConnectAfrica from filing their lawsuit in California and the judge ruled that Clause 6 was likely not enforceable under Californian law which states that “[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property or another, or violation of law, whether willful or negligent, are against the policy of the law.” As such, it appears that in the courts of California, new gTLD applicants do have the right to sue ICANN if their claims are based on fraudulent actions on the part of ICANN.
In response to this court action, ZACR filed a motion to dismiss the claims filed against it by DotConnectAfrica. The judge ruled that DotConnectAfrica had failed to make a case that ZACR had committed fraud and conspiracy to commit fraud, intentional interference with contract, and that ZACR’s conduct gave rise to unfair competition.
As such, DotConnectAfrica’s case against ZACR will go no further.
However, DotConnectAfrica’s claims against ICANN will continue to be considered by the judge. In connection with these claims the judge has issued a ruling concerning the Independent Review Process (IRP) Panel declaration that DotConnectAfrica’s application for .AFRICA should be allowed to continue through the “remainder of the new gTLD application process”.
Read the full in-depth article here : http://www.lexology.com/library/detail.aspx?g=9a87ed26-5a55-4b9d-a66b-8d026ded8335