ICANN filed this memorandum in support (pdf) of its motion to dismiss over lawsuit that IMAGE ONLINE DESIGN, INC a previously applicant for .Web filed against ICANN last year.
Here are the highlights of the ICANN filing:
In 2000, IOD executed a release in favor of ICANN so that ICANN would consider IOD’s application to operate a .WEB TLD. IOD knew that ICANN might decline to award IOD the requested TLD, or might award the TLD to a different entity, but IOD specifically released ICANN from claims related to IOD’s 2000 Application and ICANN’s establishment or failure to establish a .WEB TLD. The fact that twelve years passed before ICANN accepted new applications for the .WEB TLD does not mean that the language in the release is somehow less effective.
The release is just as enforceable today as in 2000.
In its 2000 Application, IOD released ICANN “from any and all claims and liabilities relating in any way to (a) any action or inaction by or on behalf of ICANN in connection with this application or (b) the establishment or failure to establish a new TLD.” (Request for Judicial Notice (“RJN”) submitted with ICANN’s Motion, California courts have routinely upheld
In fact, it is well-settled under California law that corporations “are entitled to contract to limit the liability of one to the other, or otherwise allocate the risk of doing business.”
First, IOD argues that, under California Civil Code section 1542, it did not release ICANN “from any claim that it was not aware of in 2000” and therefore did not release the claims alleged in its Complaint. The problem with IOD’s argument is that IOD expressly contemplated in 2000 – and therefore released ICANN from – the exact claims that IOD now asserts. IOD’s contract claims, for instance, are based on the central allegation that ICANN failed to act on IOD’s 2000 Application for the .WEB TLD. The release IOD signed in 2000 expressly contemplate and exempts ICANN from liability for claims relating to “any action or inaction by or on behalf of ICANN in connection with [IOD’s] application.”Likewise, IOD was well aware of its potential trademark claims before it executed the release in the 2000 Application because it was in the process of litigating those claims.
Second, IOD’s attempt to avoid dismissal of its claims by arguing that the release is invalid as against public policy is also deficient.…
