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Realtors withdraw five gTLD community objections

Kevin Murphy, August 8, 2013, 20:14:13 (UTC), Domain Registries

The US-based National Association of Realtors has withdrawn its Community Objections against five applicants for .realestate and .realty, according to well-placed sources.
The five separate objections, which had been combined into one action under the auspices of the International Chamber of Commerce’s International Centre for Expertise, were withdrawn today.
NAR is a million-member trade association — apparently the largest in the US — comprising real estate agents that agree to pay dues and abide by its code of conduct.
It owns a trademark on REALTORS® and, judging by its objection and web site, is not shy about letting you know it. In the States, only NAR members get to call themselves “realtors”.
It has applied for .realestate via a subsidiary, dotRealEstate LLC, and had objected to applications for .realestate from Donuts, Top Level Domain Holdings and Uniregistry, and applications for .realty from Donuts and smaller portfolio applicant Fegistry.
The objections were combined in May, with the consent of the responding applicants.
NAR argued (pdf) that the applied-for strings are synonymous with its community of members, and that the other applicants’ proposed open-house registration policies would tarnish their reputation.
To win a Community Objection, you have to show among other things that there’s a strong nexus between the string at issue and the “clearly delineated” community you purport to represent.
While the case seems to have been withdrawn before it was decided by the ICC panel, NAR’s rivals were zeroing in on this as a weak spot in its objections.
The Uniregistry response (pdf) is as amusingly brutal as you’d expect from company counsel John Berryhill, using the NAR’s own marketing materials and positions in previous lawsuits against it.
Uniregistry pointed for example to a video on NAR’s web site that says:

We need your help to ensure that the term ‘REALTOR’ continues to mean member of the National Association of Realtors, and not just any real estate agent.

Uniregistry took this as an admission from NAR that the nexus between the universe of “real estate” professionals and the NAR is not as strong as the organization had tried to make out.
In Donuts’ two responses (pdf and pdf) also attacked this angle, arguing

Objector and its members make up only a fraction of that “community”… myriad divergent interests and countless individuals and organizations populate the sphere of “realty” around the world. Objector does not claim to speak on behalf of any of them, but rather only its own membership in the United States.

Now that the objections have been withdrawn, and all the applications are still active, the .realestate and .realty contentions sets are both heading to auction or private settlement.

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Comments (2)

  1. Constantine Roussos (.MUSIC) says:
    August 10, 2013 at 2:25 am

    Kevin,
    If I were the National Association of Realtors I would have also tried to include support from Related Objector Entities “to use the support of other entities to demonstrate its standing.” (http://www.iccwbo.org/products-and-services/arbitration-and-adr/expertise/icann-new-gtld-dispute-resolution/how-to-file-an-objection/)
    For Community Objections to be upheld NAR needs to fulfill that is constitutes “A (emphasis) significant portion of the community.” i.e A fraction of a “community” can be significant. I think they accomplished this. The”divergent interests” or the “nexus” argument that the objected-to applicants are making is a weak argument, especially in the context of how the real world works and how ICANN works when it comes to representing interests. Does ALAC represent at-large users and does ICANN represent domain registrants? Many associations represent interests and those who oppose those interests would not participate as members or they would plainly express their views if they oppose their Association’s agenda. Associations are interest-based institutions.
    There is always common interest pertaining to “significant portion of communities” that is shared. For example, for “music” nearly all music associations’ and organizations’ common shared interest is the legal distribution and promotion of music. That is shared by a significant portion of the community and no-one opposes such common interest – except the pirates of course.
    When it comes to Community Objection arguments the one that is of great interest should be one that pertains to the “Degree that the Community depends upon the DNS for its Core Activities” which forms the basis of how material harm can be justified. Using “music” as an example again DNS dependency is undeniable since the DNS/Internet turned the entire music space upside down. Now more than ever, the music community depends and is critically reliant on the Internet DNS for “distribution and promotion” of its primary activities such as communication (fan engagement, legal file sharing, social media and fan sharing, email lists, branding, reputation management), promotion (search engine optimization and marketing, pay per click, social media optimization and marketing, analytics, link exchanges, news), distribution (official websites, blogs, social media profiles and media), and commerce (selling of digital downloads, merchandise, tickets, CDs and other products direct from their official website or web destinations, plus monetizing through web crowd-funding, web live streaming, online licensing and more).
    The real question is whether “real estate” core activities are dependent on the DNS and showing how there is likelihood of detriment with objected-to application/policies. I think this article focuses too much on the standing which is not what objections should be about. Objections should be about whether there is a problem or not and whether this problem is likely to occur.
    Many portfolio applicants will always try to claim there is no community, there is no delineation and there is no common interest to make their “story” work (even though they call themselves part of the ICANN community).
    What is missing in most of these conversations is the main issue about Objections: will there be a likelihood of harm, an unfair advantage or a problem? Winning the argument on “standing” or a technicality without addressing the real issues is not the goal of objections. What about addressing the real issues and problems without the Applicant Guidebook Objection loopholes?
    Again I am hoping the Panelists make the right decisions based on the merits of the cases on technicalities. Obviously the financial risk for Community Objections is significantly high, which is obviously the main reason NAR withdrew, wouldn’t you agree?

    Reply

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