Russian iTunes Store infiltrated by .xxx banners after snafu [NSFW]

Russian iTunes users reportedly got a shock today when they discovered masses of sexually explicit content from the .xxx gTLD in their iTunes Store.
According to local reports, attempts to visit a part of the store dedicated to foreign movies displayed a bunch of banner ads for .xxx web sites instead of the expected content.

@arcoolov @markgurman @9to5mac This is NOT a joke. How do you explain replies in the comments? A legitimate issue twitter.com/iphones_ru/sta…

— iphones.ru (@iphones_ru) December 5, 2012

Digging a little deeper, it appears that the images were being drawn directly from xxx.xxx, a promotional directory site owned and managed by ICM Registry, the .xxx registry.
Speculation in the Apple blogs is that an iTunes Store developer inadvertently typed “xxx.xxx” somewhere as a placeholder URL, not realizing that .xxx is actually a live TLD.
There’s a lesson here for new gTLD registries somewhere, I’m sure.

Australia leads the charge as governments file 242 new gTLD warnings

Governments of the world have filed 242 warnings on new gTLD applications, more than half of which came from Australia.
Warnings were filed against 145 strings in total, and in most cases governments issued the same warnings against all competing applications in a given contention set.
Australia was responsible for 129 warnings, accounting for most of the 49 warnings received by Donuts.
There are some surprises in there.
Notably, there were no warnings on any of the strings related to sex, sexuality or porn.
Given the amount of effort the GAC put into advising against .xxx, this is a big shock. Either governments have relaxed their attitudes, or none were willing to single themselves out as the anti-porn country.
No government warned on .gay.
The largest single recipient of warnings, with 49, was Donuts, the largest portfolio applicant.
The most-warned application, with 17 warnings, was DotConnectAfrica’s .africa. The company is contesting the gTLD without government support, and African nations objected accordingly.
Nigeria also warned Delta Airlines about its proposed .delta dot-brand,
The string “delta” is a protected ISO 3166 sub-national place name, as Delta is likely to discover when the Geographic Names Panel delivers the results of its evaluation.
Australia objected to .capital on the same grounds.
Top Level Domain Holdings was hit with warnings from Italy and South Africa based on a lack of government support for its geographic applications .roma and .zulu.
Remarkably, Samoa warned the three applications for .website on the grounds that they would be “confusingly similar” to its own ccTLD, .ws, which is marketed as an abbreviation for “website”.
The US warned on all 31 of Radix Registry’s applications, saying that the Directi company inappropriately included an email from the FBI in its bids, suggested an endorsement when none exists.
Australia, among its 129 warnings, appears to have won itself a lot of friends in the intellectual property community.
It’s objected to .fail, .sucks, .gripe and .wtf on the grounds that they have “overly negative connotations” and a lack of “sufficient mechanisms to address the potential for a high level of defensive registrations.”
It also issued warnings to applicants planning gTLDs covering “regulated sectors”, including .accountant, .architect and .attorney, without sufficient safeguards to protect consumers.
Generic strings with single-registrant business models — such as Google’s .app and .blog bids — are also targeted by Australia on competition grounds.
Australia more than any other governments appears to be trying to use its warnings as a way to enter into talks with applicants, with a view to remedial action.
Whether this will be permitted — applicants are essentially banned from making big changes to their applications — is another matter entirely.
The full list of warnings can be found here.

GAC Early Warnings confirmed for today. Here’s what I expect to see

ICANN’s Governmental Advisory Committee is ready to send out its Early Warnings on new gTLD applications today as scheduled, ICANN has confirmed.
The Early Warnings, which highlight applications that individual GAC members have problems with, are expected to be sent by the GAC to applicants and published by ICANN later.
Because the warnings are expected to be issued by individual governments, rather than the GAC as a whole, we could wind up seeing hundreds, due to multiple governments objecting to the same applications.
However, some governments may have decided to be conservative for precisely the same reason.
Governments won’t be able to hide behind the cloak of “GAC Advice”, as they did when .xxx was up for approval last year; the names of the governments will be on the warnings.
That’s not to say there won’t necessarily be safety in numbers. It’s possible that some warnings will be explicitly supported by multiple governments, potentially complicating applicant responses.
But which countries will provide warnings?
I’d be surprised if the US, as arguably the most vocal GAC player, does not issue some. Likewise, the regulation-happy European Commission could be a key objector.
It’s also my understanding that Australia has a raft of concerns about various applications, and has been leading much of the back-room discussion among GAC members.
Going out on a limb slightly, I’m expecting to see the warnings from Western nations concentrating largely on regulated industries, IP protection and defensive registrations.
We’re likely to see warnings about .bank and .sucks, for examples, from these governments. To a certain extent, any non-Community applications that could be seen as representing an industry could be at risk.
On the “morality” front, indications from ICANN’s public comment period are that Saudi Arabia has a great many problems with strings that represent religious concepts, and with strings that appear to endorse behavior inconsistent with Islamic law, such as alcohol and gambling.
But last time I checked Saudi Arabia was not a member of the GAC. It remains to be seen whether similar concerns will be raised by other governments that are members.
The one Early Warning we can guarantee to emerge is against .patagonia, the application from a US clothing retailer that shares its name with a region of South America.
The Argentinian government has explicitly said it will issue a warning against this bid, and I expect it to garner significant support from other GAC members.
The GAC Early Warnings stand to cause significant headaches for applicants, many of which are gearing up for a four-day US Thanksgiving weekend.
After receiving a warning, applicants have just 21 days to decide whether to withdraw their bid — receiving an 80% refund of their $185,000 application fee — or risk a formal GAC Advice objection next year.
But that’s not even half of the problem.
The GAC has indicated that it wants to be able to, effectively, negotiate with new gTLD applicants over the details of their applications after issuing its warnings.
At the Toronto meeting last month, the GAC asked ICANN to explain:

the extent to which applicants will be able to modify their applications as a result of early warnings.
[and]
how ICANN will ensure that any commitments made by applicants, in their applications or as a result of any subsequent changes, will be overseen and enforced by ICANN.

ICANN has not yet responded to these inquiries and it does not expect to do so until Thursday.
The fact is that ICANN has for a long time said that it does not intend to allow any applicant to make any material changes to their applications after submission. This was to avoid gaming.
It has since relaxed that view somewhat, by introducing a change request mechanism that has so far processed about 30 changes, some of which (such as .dotafrica and .banque) were highly material.
Whether ICANN will extend this process to allow applicants to significantly alter their applications in order to calm the fears of governments remains to be seen.
Whatever happens this even, many new gTLD applicants are entering unknown territory.

Straw man proposed to settle trademark deadlock at secretive ICANN meeting

Trademark interests seem to have scored significant concessions in their ongoing battle for stronger rights protection mechanisms in new gTLDs, following a second closed-doors ICANN meeting.
Following a two-day discussion of the Trademark Clearinghouse in Los Angeles late last week, ICANN CEO Fadi Chehade has published a “straw man” proposal for further discussions.
The straw man — if it is ultimately adopted — would grant the Intellectual Property Constituency and Business Constituency some of the things they recently asked for.
Crucially, they’d get the right to add keywords to the trademarks they list in the Trademark Clearinghouse, making them eligible for the Trademark Claims service.
There would be a test — a UDRP or court win concerning the string in question — for inclusion, and a limit of 50 brand+keywords or misspellings per trademark in the Clearinghouse.
The idea here is to help brand owners quickly respond to the registration of — but not preemptively block — domains such as “brand-industry.tld” or “brand-password-reset.tld”.
The Trademark Claims service would be extended from 60 to 90 days, under the straw man model.
Chehade’s blog post also outlines a “Claims 2” process that would run for six to 12 months after the launch of each new gTLD and would require trademark owners to pay an additional fee.
This Claims 2 service would not necessarily give registrants the same information about trademarks related to the domains they want to registry. Why not is anyone’s guess.
Here’s how Chehade described it:

Rights holders will have the option to pay an additional fee for inclusion of a Clearinghouse record in a “Claims 2″ service where, for an additional 6-12 months, anyone attempting to register a domain name matching the record would be shown a Claims notice indicating that the name matches a record in the Clearinghouse (but not necessarily displaying the actual Claims data). This notice will also provide a description of the rights and responsibilities of the registrant and will incorporate a form of educational add-on to help propagate information on the role of trademarks and develop more informed consumers in the registration process.

I’ve long been of the opinion that Trademark Claims service will not prevent most cybersquatting (determined bad actors will click through the notices as easily as you or I click through a software license agreement) and “Claims 2” appears to be a diluted version of the same lip service.
Claims 2 and the extension of the Clearinghouse to brand+keyword strings appears to be a step in the right direction for trademark owners, but I can’t see the changes substantially reducing their costs.
There’s also already opposition to the ideas from the Non-Commercial Stakeholders Group, according to this analysis of the straw man from NCSG chair Robin Gross.
The LA meeting rejected the notion of a preemptive cross-TLD trademark block list along the lines of the ICM Registry’s Sunrise B for .xxx, which is among the IPC/BC proposals.
The only change to Sunrise proposed in the straw man model is a mandatory 30-day notice period before the mandatory 30-day Sunrise kicks off, to give brand owners time to prepare.
In summary, the straw man proposal appears to create some marginal benefit for trademark owners at the expense of some additional cost and complexity for registries and registrars.
It would also create an entirely new rights protection mechanism — Claims 2 — out of whole cloth.
While no firm decisions appear to have been made in LA, it’s impossible for us to know for sure what went down because the meeting was held behind closed doors.
ICANN even enforced a Twitter ban, according to some attendees.
The meeting was the second private, invitation-only TMCH discussion in recent weeks.
While we understand there were remote participation opportunities for invited guests unable to attend in person, there was no opportunity to passively listen in to the call.
DI was told by ICANN there was no way for us to follow the talks remotely.
According to a number of attendees on Twitter, participants were also asked by ICANN not to tweet about the substance of the discussions, after complaints from trademark interests present.
The same attendees said that ICANN plans to publish a transcript of the meeting, but this has not yet appeared.
Considering that the issues under discussion will help to shape the structure of the domain name industry for many years to come, the lack of transparency on display is utterly baffling.

ICM has already sold $200k of premium .xxx names

Contrary to some reports, ICM Registry has in fact already seen several sales of premium names from its recently published buy-it-now price list.
Judging by the changes to the list since it was revealed three weeks ago, at least eight domains have been sold for a total of $55,755.
Two new domains — trannyporn.xxx and trannys.xxx — have been added to the list, and a handful of others have had their prices increased, by a total value of $73,820.
These are the domains we’ve managed to establish were sold, along with their original list prices:

888.xxx ($1,320)
bet.xxx ($3,465)
celebrities.xxx ($15,015)
ddd.xxx ($330)
freeliveporn.xxx ($330)
massage.xxx ($18,810)
moms.xxx ($15,000)
own.xxx ($1,485)

Some domains appear to have been repriced, adding almost $74,000 to the total value of the $7.7 million pot. For example, highdefinition.xxx is now listed at $19,000, up from $2,500.
According to ICM, not all of the sold domains have been removed from the published list yet. President Stuart Lawley said a total of over $200,000 has been taken so far.
ICM came in for a bit of criticism from one early .xxx adopter last month, when six-figure investor Mike Berkens accused the company of damaging the TLD by capping prices too early.
There are still over 1,000 available names on the list.

ICM to intro sponsored search results with $75 credit for registrants

Tearing several chapters out of the Google playbook, ICM Registry is to introduce a sponsored search placement service for .xxx registrants, along with a substantial introductory credit.
The company will give each registrant a $75-per-domain credit against its forthcoming search platform, which in many cases will completely offset the cost of their .xxx domain.
As has been pointed out elsewhere, it’s the AdWords model for porn, following on from the recent launch of search.xxx, which ICM says has already had more than 12 million page views.
The ad system is expected to roll out in “early 2013”, but ICM has launched the credits incentive now in order to get early registrants to renew their domain names.
The vast majority of .xxx’s roughly 140,000 registrations occurred during its first two months of general availability and will be coming up for renewal in December and January.
That said, ICM had said even prior to this announcement that its early renewals were looking promising.
The ad credit will apply to all .xxx domains renewed or registered before January 31, 2013, ICM said in a press release.
The company has long talked about its plans for generating advertising and micropayment-based revenue. Over the long term, selling domains may prove to be a small part of its business.

ICM puts $7.7 million of .xxx domains up for sale

Having already sold over $5 million worth of premium .xxx domains names, ICM Registry is putting another 1,000 names on the market, with a total purchase price of over $7.7 million.
Unusually for registry-reserved names, which usually end up at auction, all of the names are priced to sell.
Prices range from $220,000 for girls.xxx to $330 for provide.xxx.
Along with the full list of available names, ICM has also published some rough guides to likely traffic, based on its data gleaned from running search.xxx for the last few weeks.
A “Search Rank” stat ranks the popularity of the relevant keyword in search.xxx queries, while “Traffic Rank” divides the list into five categories by likely traffic volume.
ICM privately sold about $4 million of premium .xxx domains during its pre-launch Founders Program. Domainer Frank Schilling is believed to have invested seven figures.
Its biggest single sale to date is believed to be gay.xxx, which was snapped up for $500,000 last year.
ICM CEO Stuart Lawley told DI that the company still has about 500 premium names — including cams.xxx and tube.xxx — held in reserve to be released at a later date.

Strickling urges ICANN to bolster trademark protection for all gTLDs

US Department of Commerce assistant secretary Larry Strickling has called on ICANN to create more trademark protection mechanisms across new and existing gTLDs.
In a letter to ICANN yesterday, Strickling, head of the National Telecommunications and Information Administration, also expressed concerned about the slow progress on implementing the Uniform Rapid Suspension and Trademark Clearinghouse systems.
The URS has run into a problem because no provider ICANN has approached to date wants to run it for the $300 to $500 filing fee.
Meanwhile, the way ICANN plans to implement the Clearinghouse has been hit by criticism from registries, registrars and new gTLD applicants, many of which believe it is too inflexible.
Strickling told ICANN that “it is imperative that all fees associated with the URS remain low”, and suggested that cost savings could be achieved through integration with the Clearinghouse.
But he also called for stronger trademark protections in general, above and beyond what the ICANN community has already decided to implement.

Industry stakeholders have presented a variety of suggestions to reduce the cost of defensive registrations (e.g. trademark blocking mechanisms) and others have suggested enhanced safeguards for new gTLDs targeted at creative sectors.
While not taking a position in support of any specific proposal at this time, NTIA does believes that ICANN should continue and open and transparent dialogue between all actors in order to find solutions to these issues which have come into clearer focus since the release of the 1,930 applications this past June.

The letter was sent due to NTIA’s meeting with the 30-odd so-called “brand summit” companies — almost all household names — last month.
Among other things, they want the Clearinghouse to alert them whenever somebody registers a domain name containing their trademarks, instead of just exact matches.
The counter-argument from the domain industry is that such a proposal would create millions of false positives, due to dictionary words, run-ons and acronyms.
An example recently aired by attorney John Berryhill is the Yellow Pages trademark on “YP”, which would be triggered in the Clearinghouse whenever PayPal registered its brand as a domain name.
The brand summit companies also want a blanket trademark blocking system based on ICM Registry’s .xxx Sunrise B process, under which they pay a one-off fee to block their mark in a gTLD forever.
Opponents point out that such systems may be appropriate in single TLDs, but problems could arise when applied to all TLDs. Different companies have rights to the same strings in different fields.
Strickling appears to be aware of the problems that could be caused if the trademark community gets everything it wants. In the letter, he urges mutual understanding, writing:

Whatever process ICANN follows, trademark holders should provide clear, fact-based descriptions of the challenges they encounter in the global DNS and registries and registrars should clarify issues relating to the technical feasibility and costs of implementing any additional protections.

It’s a nice idea, but attempts to reach a sane solution have so far been unsuccessful.
Melbourne IT’s HARM proposal, which would give special rights to particularly vulnerable brands, was shot down by trademark owners as too limited during a meeting in Washington DC last month.

ICM files $120m lawsuit over Manwin’s .xxx “boycott”

ICM Registry has counter-sued YouPorn owner Manwin Licensing, looking for at least $120 million in damages, saying the porn giant is using its market power to sideline the .xxx domain.
The company claims that Manwin’s antitrust lawsuit, filed last October, is merely one of several attacks against its business.
The counter-suit alleges that Manwin, after trying and failing to invest in ICM, illegally restrained trade by forcing its business partners not to do business with ICM.
The suit (pdf) reads:

Manwin has utilized its dominance in the adult entertainment industry to encourage the wholesale boycott of the .XXX TLD in the industry in order to destroy any competition tat may arise from the commercialization of .XXX and has secured agreement, either express or implied, by those within the industry that they will not do business with .XXX.

Manwin, for example, “coerced .XXX spokesmodels to end relationships with ICM” and “conditioned contracts with third parties on their non-involvement with the .XXX TLD”, according to ICM.
The counterclaims were filed in a California court on Friday, as the latest stage of the two companies’ ongoing legal battle.
The registry is looking for $40 million in damages for Sherman Act violations, trebled.
Manwin claims ICM and ICANN broke US competition law by setting up the .xxx “monopoly”, which both ICANN and ICM deny.

Big brands ask US for published list of known cybersquatters, other stuff

A public, published list of repeat cybersquatters was among the demands that the trademark lobby took to a meeting with the US government in Washington DC yesterday.
The summit, hosted by the Department of Commerce, was the latest stage in the US government’s response to the campaign for more new gTLD rights protection mechanisms kicked off by the Association of National Advertisers a little over a year ago.
About 30 big brand owners, along with several trade associations and campaign groups, took part.
The Internet Commerce Association somehow managed to blag an invitation too, and was the only representative of domain registrants, according to a blog post by ICA counsel Phil Corwin.
The companies, which included tech companies such as Microsoft, Facebook, AOL, Yahoo and eBay and offline brand owners such as Nike, Coca-Cola, Time Warner and News Corp, met in early June to formulate a set of recommendations to take to Commerce.
These recommendations are outlined in an August 29 letter (pdf), a copy of which DI has obtained.
Notably, the companies asked for a published list of “bad actors” who have repeatedly lost Uniform Rapid Suspension cases. The letter states:

Recidivist bad actors should be tracked via a list of common Respondents and that list should be published and publicly available.

However, we understand that this request is a low-priority item, discussed only briefly yesterday, and that Commerce representatives did not immediately embrace it.
The bulk of the discussions related to tweaks trademark owners want to see in the Trademark Claims service — which alerts them and the registrant when somebody tries to register a potentially infringing domain name — and the URS.
The brand owners want Trademark Claims, which new gTLD registries are only obliged to offer for the first 60 days of general availability, extended for a longer period, possibly up to three years.
On the face of it, this is among the most reasonable longstanding demands from the IP crowd, but ICANN has resisted it to date as it’s worried about creating a monopoly in the pre-existing market for trademark monitoring services.
If the Trademark Clearinghouse is alerting you every time somebody registers a domain name with your brand in it, why pay MarkMonitor or Melbourne IT for the same service?
The letter also says that Trademark Claims should cover brand+keyword registrations, and domains containing registered trademarks, rather than just exact matches.
The worrisome aspect of this request is that there’s quite a high risk of false positives due to run-on words, very short trademarks, acronyms and dictionary words.
Non-commercial ICANN stakeholders dislike this due to the possibility of a chilling effect on free speech, while registries and registrars don’t like anything that puts unnecessary obstacles in the registration path.
With URS, the trademark owners want a full loser-pays system, though they acknowledge that it could raise the filing fee, which is something they don’t want.
To keep costs down, they want a lower filing fee for cases where the registrant does not respond and a URS panelist is not appointed, which seems like a reasonable idea.
The idea of ICANN (and, ultimately, registrants) subsidizing URS fees has also been put forward.
Finally, the trademark owners want registries to implement defensive blocking systems with one-time fees, modeled on the Sunrise B process that ICM Registry used with the launch of .xxx.
Some of the ideas — such as lower filing fees for uncontested URS cases — seem fairly reasonable and I can see them gaining traction.
Others, such as the brand+keyword protections, seem harder to implement and less likely to pass through ICANN unchallenged.
So what happens next? According to ICA’s Corwin:

For their part, the hosts of the meeting [Commerce] listened politely but did not to endorse any of the suggestions, although they did commit to follow-up interagency discussions. It was pointed out that some of the proposals have been raised before and went nowhere within ICANN, and questions were raised about what process would be utilized to place them before the broader ICANN community and its Board. It was also indicated that the U.S. would be reluctant to undertake any unilateral communications on these matters to ICANN’s Board.

Given this reluctance, I wouldn’t be surprised to see some of these ideas bubbling up through the Governmental Advisory Committee instead, as ideas from the US trademark lobby are wont to do.
As with every ICANN meeting, expect to see further discussions in Toronto next month.