ICANN has suffered another blow on its on-going dotAfrica (.africa) case against DotConnectAfrica Trust (DCA) after the court declined to lift a Preliminary Injunction on the delegation of the .africa gTLD.
ICANN as the Defendant in the case, had earlier filed a Motion for Reconsideration regarding the existing Preliminary Injunction which has made it impossible for the body in charge of the global internet to issue the .Africa top-level domain until the case is heard and concluded.
The Preliminary Injunction was instituted by DCA and granted by the court on March 4, 2016.
ICANN had moved for reconsideration (or wanted the Preliminary Injunction lifted) on two grounds – that the Court made an erroneous factual finding that impacts its determination of the merits and that Plaintiff (DCA) misrepresented facts regarding irreparable injury (further arguing that even if the Court maintains the injunction, it should order Plaintiff to post a bond).
However, the United States District Court, Central District of California sitting under US District Judge Gary Klausner on June 20 ruled against ICANN’s motion for various reasons, adding that the Court found “ICANN’s arguments unavailing.”
On the issue of erroneous factual finding, the court stated in part: “At this stage of litigation, it is reasonable to infer that the IRP Panel found that ICANN’s rejection of Plaintiff’s application at the geographic names evaluation phase was improper, and that the application should proceed to the delegation phase… The Court finds that the error in its factual finding was not determinative to its ultimate conclusion that there are serious questions going toward Plaintiff’s likelihood of success on the merits.”
On the second issue which alleged misrepresentation of facts regarding irreparable injury, the court stated that “ICANN failed to make this argument in its opposition to Plaintiff’s Motion
for Preliminary Injunction.”
On the additional issue of posting of a bond by DCA, the court ruled that even here, “ICANN failed to make any argument or showing of costs or damages in its initial opposition to Plaintiff’s Motion for Preliminary Injunction.”
“ICANN cannot use a motion for reconsideration for a second bite at the apple. Moreover, even in its current motion, ICANN does not introduce any costs or damages it will suffer if it is found to have been wrongfully enjoined,” stated the court.
With this development, it seems the .africa case is ultimately headed for a jury trial beginning from February 2017.