www.nettime.org
Nettime mailing list archives

<nettime> Ninth Circuit affirms name.space v. ICANN
nettime's_institutional_memory on Sat, 1 Aug 2015 04:13:50 +0200 (CEST)


[Date Prev] [Date Next] [Thread Prev] [Thread Next] [Date Index] [Thread Index]

<nettime> Ninth Circuit affirms name.space v. ICANN


< https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2015/07/31/13-55553.pdf >


FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

NAME.SPACE, INC.,Plaintiff-Appellant, v.

INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS, Defendant-Appellee.

No. 13-55553 D.C. No. 2:12-cv-08676- PA-PLA

OPINION

Appeal from the United States District Court for the Central District of
California Percy Anderson, District Judge, Presiding

Argued and Submitted

March 6, 2015 -- Pasadena, California

Filed July 31, 2015

Before: Stephen Reinhardt, N. Randy Smith, and Andrew D. Hurwitz,
Circuit Judges.

Opinion by Judge Hurwitz


SUMMARY*

Antitrust / Trademark

The panel affirmed the dismissal of an antitrust suit brought against
the Internet Corporation for Assigned Names and Numbers, which, under
contract with the Department of Commerce, creates and assigns top level
domains, such as ".com" and ".net."

name.space, a registry specializing in "expressive" top level domains,
such as .art and .food, challenged ICANN's 2012 round of applications
for new top level domains to be included in the ICANN "root zone file."

The panel held that the complaint did not state a claim for conspiracy
in restraint of trade or commerce under sec. 1 of the Sherman Act because
it did not sufficiently allege an anticompetitive agreement. The
complaint did not state a claim for monopolization in violation of sec. 2
of the Sherman Act because ICANN is not a competitor in the market to
act as a top level domain registry, the international market for domain
names, or the market for blocking or defensive registration services.

The panel held that trademark and unfair competition claims were not
ripe for adjudication because the complaint did not allege that ICANN
has delegated or intends to delegate any of the top level domains that
name.space uses.

* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

The panel also held that the complaint did not state a claim for
tortious interference or unfair business practices.

COUNSEL

Michael B. Miller (argued), Craig B. Whitney, Adam J. Hunt, Morrison &
Foerster LLP, New York, New York, for Plaintiff-Appellant.

Jeffrey A. LeVee (argued), Eric P. Enson, Kathleen P. Wallace, Jones
Day, Los Angeles, California, for Defendant-Appellee.

OPINION

HURWITZ, Circuit Judge:

The Internet Corporation for Assigned Names and Numbers ("ICANN")
creates and assigns top level domains ("TLDs"), such as ".com" and
".net." In 2012, ICANN accepted applications for the creation of new
TLDs. This suit alleges that the 2012 Application Round violated federal
and California law. The district court dismissed the complaint, and we
affirm.

I. Factual Background A. Top Level Domains

Each Internet website is assigned a unique Internet Protocol ("IP")
numerical address. For ease of searching, websites also have
alphanumeric domain names, such as "nytimes.com." The portion before the
dot -- "nytimes" -- is called the "second level domain." The portion after the
dot -- "com" -- is the TLD.

There are three main types of TLDs -- sponsored TLDs (such as ".gov" and
".edu"), restricted to users who meet specified criteria; country-code
TLDs (such as ".uk" or ".fr"), controlled by sovereign nations; and
generic TLDs (such as ".com" and ".net"), those at issue in this case,
open to all users. Individual generic TLDs are operated by registries,
such as VeriSign, which sell the ability to register a domain name with
a particular TLD and maintain a zone file, or registry, of all the
domain names associated with that TLD. These registries approve
registrars, such as godaddy.com, to sell domain names incorporating
those TLDs to the public.

A "Domain Name System" ("DNS") links each of these unique domain names
with the IP address corresponding to that website. When an Internet user
searches for a domain name, the DNS converts the domain name to the IP
address by searching a list of TLDs called the "root zone file" (the
"Root"). Additional TLDs are made available by organizations other than
ICANN on alternative root files. However, alternative root files can
only be accessed through special settings not routinely employed by most
Internet users. Thus, the vast majority of Internet users can only
access websites with TLDs included in the ICANN- controlled Root. When
the complaint in this case was filed, ICANN included eight generic TLDs
on the Root.

B. ICANN

The DNS and the Root were initially managed by the National Science
Foundation. See Daniela Michele Spencer, Note, Much Ado About Nothing:
ICANN's New gTLDs, 29 Berkeley Tech. L.J. 865, 867-69 (2014). In 1997,
the National Science Foundation transferred control to the Department of
Commerce ("DOC"). The DOC later issued a white paper proposing that
management be transferred to a private, not-for-profit corporation. See
Management of Internet Names and Addresses, 63 Fed. Reg. 31,741, 31,741
(Jun. 10, 1998).1 The white paper suggested that the corporation's board
of directors "should be balanced to equitably represent the interests of
IP number registries, domain name registries, domain name registrars,
the technical community, Internet service providers (ISPs), and Internet
users (commercial, not-for- profit, and individuals) from around the
world." Id. at 31,750; see also A. Michael Froomkin & Mark A. Lemley,
ICANN and Antitrust, 2003 U. Ill. L. Rev. 1, 12 (2003).

In 1998, the DOC contracted with ICANN, a non-profit corporation, to
manage the Internet Assigned Numbers Authority ("IANA"). See Justin T.
Lepp, Note, ICANN's Escape from Antitrust Liability, 89 Wash. U. L. Rev.
931, 935, 959-60 (2012); Froomkin & Lemley, supra, at 15. ICANN thereby
obtained the authority to operate the DNS and the Root, add new TLDs to
the Root, and determine which registries would operate existing TLDs.
The Memorandum of Understanding between the DOC and ICANN reserved the
DOC's right to withdraw recognition of ICANN. See Froomkin & Lemley,
supra, at 13-14. In 2009, the Memorandum lapsed and the DOC formally
relinquished control over DNS policy to ICANN. See Lepp, supra, at 935.2
ICANN is controlled by a board of directors with qualifications along
the lines proposed in the white paper; many are industry insiders. The
government has no formal input into the selection of the directors. See
Froomkin & Lemley, supra, at 10-11.

C. name.space

name.space is a registry specializing in "expressive" TLDs, such as
.art, .food, .magic, .music, .now, and .sucks. According to the
complaint, name.space's business model contemplates "the simultaneous
operation of a significant number of TLDs." None of name.space's TLDs is
currently available on the Root.

D. The 2000 and 2012 Application Rounds

In 2000, ICANN first solicited applications for new TLDs. The
application instructions were seven pages, the fee was $50,000, and a
single application could seek multiple TLDs. The application included a
release of all liability against ICANN. name.space applied for 118 TLDs.
ICANN approved only seven new TLDs, none of which was awarded to
name.space.

In 2012, ICANN again accepted applications for new TLDs. This time, the
application guidebook was 349 pages in length, the fee was $185,000, and
each application could seek only one TLD. Unsuccessful applicants from
the 2000 Round received an $86,000 credit on one application, but were
required to waive any claims arising from the 2000 Round. name.space did
not apply in 2012 because the financial and procedural costs were too
high. As in 2000, applications for new TLDs in 2012 came largely from
industry insiders.

The list of TLDs applied for by others in 2012 included 189 TLDs
currently in use by name.space. As of the filing of the complaint, ICANN
had not announced which new TLDs will be included on the Root.3

E. Procedural Background

In 2012, name.space filed a complaint in the Central District of
California, alleging that ICANN violated sections 1 and 2 of the Sherman
Act, the Lanham Act, the California Cartwright Act, and the California
Business and Professions Code in connection with the 2012 Application
Round. The complaint also alleged common law trademark, unfair
competition, and tortious interference claims. In 2013, the district
court granted ICANN's motion to dismiss the complaint, holding that the
trademark and unfair competition claims failed to present a justiciable
case or controversy, and that the other claims failed to state a claim
upon which relief could be granted.4 The district court dismissed the
Sherman Act sec. 2 claim with prejudice, and granted name.space leave to
amend as to all other claims. After name.space elected not to amend,
final judgment was entered in favor of ICANN. This timely appeal
followed.

II. Jurisdiction and Standard of Review

We have jurisdiction over this appeal under 28 U.S.C. sec. 1291. We review
de novo dismissals for failure to state a claim, Coal. for ICANN
Transparency, Inc. v. VeriSign, Inc., 611 F.3d 495, 501 (9th Cir. 2010)
("ICANN Transparency"), and for absence of a justiciable case or
controversy, Laub v. U.S. Dep't of Interior, 342 F.3d 1080, 1084 (9th
Cir. 2003). "All allegations of material fact are taken as true and are
construed in the light most favorable to" the plaintiff. ICANN
Transparency, 611 F.3d at 501.

III. Sherman Act sec. 1

Section 1 of the Sherman Act prohibits conspiracies "in restraint of
trade or commerce." 15 U.S.C. sec. 1. A sec. 1 claim requires: (1) a
"contract, combination or conspiracy among two or more persons or
distinct business entities"; (2) which is intended to restrain or harm
trade; (3) "which actually injures competition"; and (4) harm to the
plaintiff from the anticompetitive conduct. Brantley v. NBC Universal,
Inc., 675 F.3d 1192, 1197 (9th Cir. 2012) (internal quotation marks
omitted). "Because sec. 1 . . . does not prohibit all unreasonable
restraints of trade but only restraints effected by a contract,
combination, or conspiracy, the crucial question is whether the
challenged anticompetitive conduct stems from independent decision or
from an agreement, tacit or express." Bell Atl. Corp. v. Twombly, 550
U.S. 544, 553 (2007) (alterations, citations, and internal quotation
marks omitted).

A complaint asserting a sec. 1 claim must allege facts "plausibly
suggesting (not merely consistent with)" a conspiracy. Id. at 557. It is
not enough merely to include conclusory allegations that certain actions
were the result of a conspiracy; the plaintiff must allege facts that
make the

conclusion plausible. See Kendall v. Visa U.S.A., Inc., 518 F.3d 1042,
1047-48 (9th Cir. 2008). This standard does not impose a "probability
requirement," but "simply calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence of illegal agreement."
See Twombly, 550 U.S. at 556.

The complaint in this case alleges that the rules and procedures
governing the 2012 Application Round were the result of a conspiracy
between ICANN, its board members, and industry insiders. As is common,
the complaint includes no direct allegation of an agreement among the
alleged co-conspirators. See Oltz v. St. Peter's Cmty. Hosp., 861 F.2d
1440, 1450-51 (9th Cir. 1988). Rather, the complaint's conspiracy
assertion rests on the following alleged circumstantial evidence: (a)
some of ICANN's board members have "known, vested interests in the
economic performance of the TLD registries"; (b) ICANN and its board
designed the rules for the 2012 Application Round; (c) the 2012
application price was significantly higher than the 2000 price, and the
rules more complex; (d) the 2012 Application Round's price and rules
conflicted with name.space's business model; (e) the majority of 2012
applicants were industry insiders and large technology companies; and
(f) some potential applicants, including name.space, were deterred from
applying in 2012 by the price and rules.

We cannot, however, infer an anticompetitive agreement when factual
allegations "just as easily suggest rational, legal business behavior."
Kendall, 518 F.3d at 1049. Here, ICANN's decision-making was fully
consistent with its agreement with the DOC to operate the DNS and the
Root. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 597 n.21 (1986)

("[C]onduct that is as consistent with permissible competition as with
illegal conspiracy does not, without more, support even an inference of
conspiracy."); Eclectic Props. E., LLC v. Marcus & Millichap Co., 751
F.3d 990, 996 (9th Cir. 2014) (explaining that courts must consider
obvious alternative explanations for a defendant's behavior when
analyzing plausibility). In transferring control to ICANN, the DOC
specifically required it to coordinate the introduction of new TLDs onto
the Root. This is exactly what ICANN did in the 2012 Application
Round -- after determining that the Internet could sustain more TLDs, ICANN
created a process for TLD registries to apply for new ones. The 2012
rules and procedures were facially neutral, and there are no allegations
that the selection process was rigged. See ICANN Transparency, 611 F.3d
at 502-03 (affirming in part a dismissal of a sec.1 claim because there
were insufficient allegations that competitive bidding was rigged).

name.space contends that an anticompetitive agreement nonetheless is
plausible because the rules of the 2012 Application Round, including the
application fee and limit of one TLD per application, were contrary to
its business model. But, absent allegations that suggest ICANN's
decisions were illogical or suspicious, see Twombly, 550 U.S. at 556
n.4; In re High-Tech Emp. Antitrust Litig., 856 F. Supp. 2d 1103, 1116
(N.D. Cal. 2012) (noting that it "strain[ed] credulity" that alleged
conduct occurred absent unlawful coordination), ICANN's independent
business decisions about how many TLDs to create, and at what price they
are offered, are not policed by sec. 1, see T.W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass'n, 809 F.2d 626, 634 (9th Cir. 1987). ICANN was
not required to replicate the 2000 Application Round in 2012, or even to
create new TLDs. The application rules served to ensure that those who
obtained new TLDs would be financially stable. This is a perfectly
logical decision, and one that ICANN, through its contract with the DOC,
had full authority to make.

The complaint alleges that ICANN's board members had motive to design an
application process that would benefit their corporate allies. But such
motive alone cannot sustain a sec. 1 claim. See Matsushita, 475 U.S. at 597
n.21; In re Late Fee & Over-Limit Fee Litig., 528 F. Supp. 2d 953, 964
(N.D. Cal. 2007) (citing VI Philip E. Areeda & Herbert Hovenkamp,
Antitrust Law: An Analysis of Antitrust Principles and Their Application
• 1411, at 68 (2d ed. 2003)), aff'd, 741 F.3d 1022 (9th Cir. 2014). And,
the complaint includes no specific allegations of wrongdoing that would
indicate that the board members acted with an improper motive. Cf. Am.
Soc'y of Mech. Eng'rs, Inc. v. Hydrolevel Corp., 456 U.S. 556, 560-62,
571-72 (1982) (evidence that committee members used their positions to
disparage a rival's product); Radiant Burners, Inc. v. Peoples Gas Light
& Coke Co., 364 U.S. 656, 659-60 (1961) (per curiam) (association
members conspired to withhold a necessary certification from rival).

name.space alleges that the rules advantaged the businesses with which
some board members were associated. But, it was understood from ICANN's
inception that its board would include industry insiders, and that the
board would approve the application process. See Management of Internet
Names and Addresses, 63 Fed. Reg. at 31,749-50. We cannot infer an
illegal agreement with outside interests simply because ICANN's rational
business decisions favor the status quo rather than name.space's
untested alternative business model. See Monsanto Co. v. Spray-Rite
Serv. Corp., 465 U.S. 752, 764 (1984) ("There must be evidence that
tends to exclude the possibility that the [alleged conspirators] were
acting independently.").

It may well be, as name.space claims, that an "open Internet" represents
better public policy than one with a more limited supply of TLDs. But
the DOC left that choice to ICANN. At bottom, name.space's complaint
alleges that ICANN's actions should be viewed as arising from a
conspiratorial agreement because a conspiracy is theoretically possible.
But that is not enough to state a sec. 1 claim. We cannot infer a
conspiracy based on speculation that the very type of board members the
DOC sought must have conspired to restrain trade simply because the
system they adopted made it difficult for name.space to carry out its
business plans.5

IV. Sherman Act sec. 2

Section 2 of the Sherman Act prohibits monopolization. 15 U.S.C. sec. 2.
"There are three essential elements to a successful claim of Section 2
monopolization: (a) the possession of monopoly power in the relevant
market; (b) the willful acquisition or maintenance of that power; and
(c) causal antitrust injury." Allied Orthopedic Appliances Inc. v. Tyco
Health Care Grp. LP, 592 F.3d 991, 998 (9th Cir. 2010) (quoting Cal.
Computer Prods., Inc. v. Int'l Bus. Mach. Corp., 613 F.2d 727, 735 (9th
Cir. 1979)) (internal quotation marks omitted).6

The complaint posits three relevant markets: (a) the market to act as a
TLD registry; (b) the international market for domain names; and (c) the
market for blocking or defensive registration services. ICANN, however,
is neither a registry nor a registrar. Because ICANN is not a competitor
in any of the three markets, they cannot serve as the basis for a sec. 2
monopoly claim. See Mercy-Peninsula Ambulance, Inc. v. San Mateo Cnty.,
791 F.2d 755, 759 (9th Cir. 1986) ("The gravamen of a section 2 claim is
the deliberate use of market power by a competitor to control price or
exclude competition."); see also Spanish Broad. Sys. of Fla., Inc. v.
Clear Channel Commc'ns, Inc., 376F.3d 1065, 1075 (11th Cir. 2004)
("There is no question that [defendant] does not participate in the
Spanish-language radio market. Thus, [defendant] cannot attempt to
monopolize that market.").

name.space argues that ICANN should be considered a participant in the
three markets because ICANN has ultimate control over TLDs, which are
the essential aspect of each of the relevant markets. But this does not
mean that ICANN competes in the markets. In Mercy-Peninsula, we
addressed whether a county monopolized a market because it chose which
company would provide paramedic services. 791 F.2d at 756. We rejected sec.
2 liability, holding that because "the county is not a competitor in the
health care provision market," it "cannot be charged with having used
market position to exclude competition." Id. at 759; see also Olde
Monmouth Stock Transfer Co. v. Depository Trust & Clearing Corp., 485 F.
Supp. 2d 387, 392-93 (S.D.N.Y. 2007) (rejecting the argument that
"market power under Section 2 of the Sherman Act encompasses 'influence'
by a non-competitor over the relevant market").7

Even if ICANN competed in any of the relevant markets, sec. 2 liability
could only arise if ICANN unlawfully acquired or maintained its
monopoly. See Allied Orthopedic, 592 F.3d at 998. The district court
correctly held that ICANN's authority was lawfully obtained through a
contract with the DOC. See United States v. Grinnell Corp., 384 U.S.
563, 570-71 (1966) (distinguishing "willful acquisition" of monopoly
power from "development as a consequence of a superior product, business
acumen, or historic accident"). A monopolist can also violate sec. 2 by
engaging in predatory behavior against potential competitors. See ICANN
Transparency, 611 F.3d at 506; Alaska Airlines, Inc. v. United Airlines,
Inc., 948 F.2d 536, 547-49 (9th Cir. 1991). But name.space does not
allege such behavior; indeed, name.space is not restricted from
establishing TLDs on alternative root files. The DOC chose ICANN to
manage the DNS and the Root. Barring predatory behavior, ICANN is "free
to choose the parties with whom [it] will deal, as well as the prices,
terms, and conditions of that dealing." Pac. Bell Tel. Co. v. Linkline
Commc'ns, Inc., 555 U.S. 438, 448 (2009); see also Verizon Commc'ns Inc.
v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407-08 (2004).
The complaint merely alleges that the 2012 Application Round was
structured in a manner not advantageous to name.space's business model.
But whether ICANN's choices were wise or fair is an issue outside the
purview of sec. 2.

V. Trademark Claims

Trademark and unfair competition law protect against the misleading use
of another's mark. See Mattel, Inc. v. Walking Mountain Prods., 353 F.3d
792, 806 (9th Cir. 2003); Los Defensores, Inc. v. Gomez, 166 Cal. Rptr.
3d 899, 912-13 (Ct. App. 2014). The complaint asserts Lanham Act, common
law trademark, and common law unfair competition claims because ICANN
accepted applications for TLDs in use by name.space.8 The district court
found these claims not ripe for adjudication. We agree.

"A question is fit for decision when it can be decided without
considering 'contingent future events that may or may not occur as
anticipated, or indeed may not occur at all.'" Addington v. U.S. Airline
Pilots Ass'n, 606 F.3d 1174, 1179 (9th Cir. 2010) (quoting Cardenas v.
Anzai, 311F.3d 929, 934 (9th Cir. 2002)). We applied this principle to a
patent infringement claim in Swedlow, Inc. v. Rohm & Haas Co., 455 F.2d
884 (9th Cir. 1972) (per curiam). The plaintiff in that case alleged
that the operation of a factory under construction would, upon
completion, infringe on the plaintiff's patents. Id. at 885. We affirmed
the dismissal of this claim as unripe, finding the threat of
infringement "too remote and unduly speculative" because only the floor
and the shell of the factory were then in place. Id. at 886.

The Swedlow analysis applies here. See Image Online Design, Inc. v.
Internet Corp. for Assigned Names & Numbers, No. CV 12-08968 DDP (JCx),
2013 WL 489899, at *5 (C.D. Cal. Feb. 7, 2013) (applying Swedlow to
trademark infringement). name.space has not alleged that ICANN has
delegated or intends to delegate any of the TLDs that name.space uses.
All that name.space alleges is that ICANN has accepted applications from
companies wanting to use one of those TLDs on the Root. Although
name.space may have a ripe claim if such a delegation occurs, the
complaint as it stands does not allege "actual or imminent
infringement." Swedlow, 455 F.2d at 886.9

We are unpersuaded by name.space's argument that the acceptance of the
applications and fees alone constitutes infringement. The cases it cites
all deal with situations in which the defendant clearly intended to
violate plaintiff's trademarks in the near future. See Levi Strauss &
Co. v. Shilon, 121 F.3d 1309, 1311-12, 1314 (9th Cir. 1997) (finding
Lanham Act liability for a defendant who "admitted to offering to sell
counterfeit Levi's jeans and components"); Millennium Labs., Inc. v.
Ameritox, Ltd., No. 12CV1063-MMA (JMA), 2012 WL 4863781, at *1 (S.D.
Cal. Oct. 12, 2012) (denying a motion to dismiss an infringement claim
against a defendant who offered to sell a product employing similar
trade dress); Nova Wines, Inc. v. Adler Fels Winery LLC, 467 F. Supp. 2d
965, 970-72 (N.D. Cal. 2006) (granting a preliminary injunction against
a defendant who used plaintiff's trademark in its product packaging, but
had yet to actually sell it). No such facts were alleged here. Nor did
ICANN "use" the TLDs simply by accepting the applications. See Bosley
Med. Inst., Inc. v. Kremer, 403 F.3d 672, 676 (9th Cir. 2005)
("Infringement claims are subject to a commercial use requirement.");
Los Defensores, 166 Cal. Rptr. 3d at 913 (noting that unfair competition
liability requires a "misleading or deceptive use").

VI. Tortious Interference Claims

name.space alleges California common law claims for tortious
interference with contract and prospective economic advantage. The
elements of a tortious interference with contract claim are: "(1) a
valid contract between plaintiff and a third party; (2) defendant's
knowledge of the contract; (3) defendant's intentional acts designed to
induce breach or disruption of the contract; (4) actual breach or
disruption; and (5) resulting damage." Family Home & Fin. Ctr., Inc. v.
Fed. Home Loan Mortg. Corp., 525 F.3d 822, 825 (9th Cir. 2008). A
tortious interference with prospective economic advantage claim has the
same elements (focusing instead on the existence and knowledge of a
prospective economic relationship), but also requires that the
defendant's conduct be "wrongful by some legal measure other than the
fact of interference itself." Kor. Supply Co. v. Lockheed Martin Corp.,
63 P.3d 937, 950 (Cal. 2003) (internal quotation marks omitted).

The district court properly dismissed these claims. name.space does not
allege any facts plausibly suggesting that ICANN accepted applications
in the 2012 Round with the intent to breach or disrupt any existing
contracts or prospective economic relationships. name.space, moreover,
does not allege any specific resultant disruption to contractual or
economic relationships. See, e.g., Image Online, 2013 WL 489899, at
*9-10; Conte v. Jakks Pac., Inc., No. 1:12-CV-00006-LJO-GSA, 2012 WL
6115632, at *5-6 (E.D. Cal. Dec. 10, 2012); Semi-Materials Co. v.
SunPods, Inc., No. 11-CV-06719-LHK, 2012 WL 3962487, at *6 (N.D. Cal.
Sept. 10, 2012). And, the failure to sufficiently allege a wrongful act
outside of the interference itself forecloses an interference with
prospective economic advantage claim. See Kor. Supply, 63 P.3d at 950.
VII. Unfair Business Practices Claim "California's statutory unfair
competition laws broadly prohibit unlawful, unfair, and fraudulent
business acts."

Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1151 (9th Cir.
2008) (citing Kor. Supply, 63 P.3d at 943). Statutory liability can be
premised on antitrust or trademark violations. See id. at 1152
(antitrust); Cleary v. News Corp., 30 F.3d 1255, 1263 (9th Cir. 1994)
(trademark). Because name.space failed to state an antitrust violation,
trademark claim, or other unlawful act, the district court properly
dismissed this claim.

VIII. Conclusion

For the reasons stated above, we AFFIRM the judgment of the district
court.







1 The white paper was cited repeatedly in the complaint and was
therefore incorporated by reference. See United States v. Ritchie, 342
F.3d 903, 907-08 (9th Cir. 2003).

2 The DOC, however, still retained the ability to move the IANA contract
to another organization. See Lepp, supra, at 959-60. The federal
government plans to end its coordination role when the current IANA
contract expires in September 2015, and has asked ICANN to develop a
transition plan. See Nat'l Telecomms. & Info. Admin., NTIA Announces
Intent to Transition Key Internet Domain Name Functions (Mar. 14, 2014),
http://www.ntia.doc.gov/press-release/2014/ntia-
announces-intent-transition-key-internet-domain-name-functions.

3 name.space's complaint only challenges the 2012 Round's rules and
procedures. We therefore do not consider today any questions concerning
the subsequent delegation of TLDs.

4 ICANN had also moved to dismiss on the ground that the release clause
in the 2000 application barred liability on all claims. The district
court converted the motion into one for summary judgment, which it
denied. ICANN does not seek review of that decision.

5 Because the analysis under the Cartwright Act, Cal. Bus. & Prof. Code
sec.sec. 16700-16770, is identical to that under the Sherman Act, see Cnty. of
Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1160 (9th Cir. 2001), we
also affirm the district court's dismissal of the Cartwright Act claim.

6 No claim for conspiracy to monopolize was raised in the complaint.

7 Contrary to name.space's argument, this case is not akin to Tate v.
Pacific Gas & Electric Co., 230 F. Supp. 2d 1072 (N.D. Cal. 2002).
There, the relevant market was "natural-gas technologies and/or the
specialized equipment needed to supply the specialized fuels," which
encompassed two distinct competing technologies -- compressed natural gas
("CNG") and liquefied natural gas ("LNG"). Id. at 1075-76. Although the
defendant only sold CNG, the district court held it could be liable for
hindering a LNG competitor based on allegations that it was protecting
its CNG business and later planned to enter, and monopolize, the LNG
market. Id. at 1078-79. Here, in contrast, ICANN does not need to hinder
any of the relevant markets to protect its own monopoly, and there are
no allegations that it plans to enter any of them.

8 Like the parties, we treat the three related claims collectively.

9 Because the complaint contains no allegations about delegations, we do
not today consider whether an actual delegation would give rise to a
justiciable controversy or the merits of such a controversy. See supra
note 3.

#  distributed via <nettime>: no commercial use without permission
#  <nettime>  is a moderated mailing list for net criticism,
#  collaborative text filtering and cultural politics of the nets
#  more info: http://mx.kein.org/mailman/listinfo/nettime-l
#  archive: http://www.nettime.org contact: nettime {AT} kein.org