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Don’t rush to defensively register .xxx domains

Kevin Murphy, May 18, 2011, 09:03:42 (UTC), Domain Registries

Trademark owners trying to figure out how to protect their brands in the .xxx top-level domain should wait for ICM Registry to reveal its full suite of anti-cybersquatting measures before deciding whether to defensively register a large portfolio of domains.

With registrar prices for sunrise trademark blocks currently hovering around the $300 mark, an especially aggressive enforcement strategy could rack up six-figure bills for large brand holders.

But it may turn out to be more cost-effective to use ICM’s post-launch enforcement mechanisms to fight cybersquatting.

So far, all we’ve seen from ICM is a white paper, prepared by its partner IPRota, that outlines the policies that will be in place during the pre-launch sunrise period.

But the company plans to have some of the most Draconian post-launch IP rights protections mechanisms of any new TLD to date.

If, as a registrant, you think the Uniform Rapid Suspension policy ICANN plans to enforce on new TLDs is tough, you’ll likely have a bigger problem with Rapid Takedown.

Rapid Takedown is expected to be modeled on the Digital Millennium Copyright Act. It will use UDRP experts, but will only take 48 hours to suspend a domain name. ICM has described it like this:

Rapid Takedown
Analysis of UDRP disputes indicates that the majority of UDRP cases involve obvious variants of well-known trademarks. ICM Registry does not believe that the clearest cases of abusive domain registration require the expense and time involved in traditional UDRP filings. Accordingly, ICM Registry will institute a rapid takedown procedure in which a response team of independent experts (qualified UDRP panelists) will be retained to make determinations within 48 hours of receipt of a short and simple statement of a claim involving a well-known or otherwise inherently distinctive mark and a domain name for which no conceivable good faith basis exists. Such determinations will result in an immediate termination of resolution of the domain name, but will not prejudice either party’s election to pursue another dispute mechanism. The claim requirements will be modeled after the Digital Millennium Copyright Act.

It remains to be seen how much this will cost complainants (assuming there is a cost), and there are other unanswered questions such as the duration of the suspension, the ability of the complaint to have the domain transferred and the registrant’s right of appeal.

But it’s clear that trademark holders will very likely have cheaper options than UDRP, which can cost as much as $1,500 for a single domain name.

In addition, ICM plans to permanently ban cybersquatters that are “found to have repeatedly engaged in abusive registration”. Abusers will lose their .xxx portfolios, even their non-infringing domains, and will not be able to register any more.

Combined with Rapid Takedown, and the high price of .xxx domains ($75 a year minimum so far), this will likely make cybersquatting a much less attractive proposition in .xxx than .com.

Trademark holders should wait for their full range of options to be revealed before panicking about high sunrise fees.

It may turn out to be more cost-effective to block just a few primary brands, and leave enforcement of other brands to post-launch mechanisms.

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Comments (7)

  1. Curt Backer says:

    Whats with a porno company extorting regular businesses? Regular companies have to pay an outrageous fee to a pornographer, or else?

    .XXX is purely criminal. Launch an investigation already!

  2. Fredo says:

    Curt, the ICM Registry is not even part of the adult industry. The adult industry has been fighting the ICM and their dotxxx tld since the very beginning.

  3. Joseph says:

    ICM and the .xxx “s”tld only hurts the adult industry, the web and freedoms in general. ICM Registry is an extortion company, their goal is to extort money from adult webmasters under the guise of making more money and being a “label of trust” (b.s.), I heard rumors that if ICM did not get the nod from ICANN to push this through, they were going to sue ICANN.

    The only “sponsors” ICM has from people directly involved with ICM Registry to push .xxx. A majority of these people have never been involved with the adult industry other than trying to convince, buy and bully webmasters in to the domain.

    The majority adult industry (including myself) in general does not support this for many reasons; including trademark infringement, assumption of child protection, censorship and cost.

    Trademarks; My lawyer can’t wait to sue anyone who registers a .xxx tld (or any .tld) with my trademarks. sunrise, rapid take down plan or not.

    Child Protection; Obviously adult webmasters don’t want kids on our sites, it is illegal for children to be viewing adult material, but most adult webmasters elect to self label our sites with Restricted To Adults and other labels to prevent children from viewing our sites.

    They plan to have their own child protection agency as part of their board, which will regulate the content .xxx tld. The whole child protection claim is bull, .xxx will give more children access to the adult material, they will easily be able to think of “keyword.xxx”.

    Censorship; India has already banned the .xxx tld, And I am sure there are more to follow. This is a slippery slope for US citizens as most adult material and content is protected by the 1st Amendment of the constitution. It obviously does not cover obscenity and material involving sexual abuse of minors.

    When speech is categorized, it gets banned. With .xxx tld sets dangerous precedents, eventually we could see adult speech, even if it’s not porn, such as art or education banned in the US. I foresee legislation coming soon that will require all adult websites to have a .xxx tld (and I hope any legislation gets defeated).

    Cost; As a webmaster who owns 337 .com domains, registering them at the estimated $75 price point ($60 wholesale to registrars) is another $25k+ a year in just registration fees alone. Currently I pay just over $2.1k a year in .com registrations, adding another $25k in registrations hurt my bottom line. With the global economic problems and piracy the adult industry isn’t a profitable as it once was.

    It’s quite a risk to bank on a .xxx tld when there is so many bad things about the tld. What if it’s another .tv? Also, it is rumored that .xxx sites must use the approved ICM billing company, which means increased billing costs and lack of billing options.

    I believe no one is going to invest $75 in this economy to run a free site, which is a majority of the adult industry as most webmasters work with up sales to sponsors.

    Why would I want to shoot myself in the foot?

  4. […] I am not an expert in this area, Kevin Murphy’s advice seems more astute to me at this stage of the game, stating in […]

  5. Hans says:

    Today I received an email from Gandi, recommending me that I’d pay the ICM to defensively block my trademark. As a response I will now transfer my domains away from Gandi.net.

    I have long known that the ICM was shady. It’s a shame to find out that Gandi.net is now in bed with them 🙁

  6. […] blogged back in May about why it might not be necessary to spend a fortune on defensive registrations in .xxx, given the existence of this policy and […]

  7. Leoma says:

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