What .xxx means for trademark holders

Trademark holders have been screwed over by ISP domain name wildcarding more than they realise, I’ve discovered from the .xxx contract documents.
ICM Registry is planning a novel approach to trademark protection if its application to launch the .xxx top-level domain is successful, but it’s been watered down compared to its original plan.
Hypothetically, let’s say you’re Lego. You really, really don’t want some cybersquatter snapping up lego.xxx and filling it with… well, you can imagine what Lego porn might look like.
At the same time, for the sake of your family-friendly brand, you don’t want to actually own a resolvable lego.xxx either.
And you certainly don’t want to be forced to to hand some pornographer over $60 a year for each of your brands. Some companies could see this as supporting pornography.
ICM had originally planned to allow companies in this position to pay a one-time fee to have their brand.xxx turned off permanently.
Personally, I like this idea. It would give the IP lobby a lot less to complain about in discussions surrounding the new TLD program.
But the company may now water down this plan, called IP Protect, due to the way that non-existent domains are increasingly handled by some ISPs.
As you probably know, ISPs worldwide are increasingly capturing NXDOMAIN traffic in order to show search results and advertising links to their customers.
It’s generally frowned upon in DNS circles, and it’s now likely to have the effect of making IP Protect costlier and more of an administrative hassle for brand owners.
You’re Lego again. You pay ICM the one-time shut-down fee, only to find that Comcast is now showing its users links to Lego porn whenever they type in lego.xxx.
ICM president Stuart Lawley tells me that one option currently being looked at is to have IP Protect domains resolve to a standard page at an ICM-controlled server.
The problem here is that ICM has to pay ICANN and its registry back-end provider annual fees for every resolving domain name, and that cost will have to be passed on to the registrant, in our case Lego.
Lawley says that ICM is “engaging” with the ICANN intellectual property community to figure out the best solution. It appears that both options are still open.

Why .xxx will be domainer-friendly (and why it won’t)

The proposed .xxx top-level domain may be “sponsored”, but the restrictions on who will be able to register names are so loose that pretty much anybody, including domainers, will be able to register one.
I’ve now had time to dig through the mountain of documents that ICANN published earlier this week. I’m submitting something to The Register later today, but I thought I’d first look here at the domaining angle.
First, the bad news: .xxx domains won’t be cheap.
ICM Registry, which wants to run the TLD, plans to charge $60 per year, and that’s just the registry fee.
That’s a lot of money to recoup if you’re planning to park a domain, so it’s likely that much of the value of .xxx for domainers will be in development and resale.
The proposed contract does suggest, and ICM president Stuart Lawley is on record as saying, that the price of registrations could eventually come down. Whether that would include renewals remains to be seen.
Now for the good news: you won’t actually have to be a pornographer to register a .xxx domain.
It’s true that .xxx is ostensibly restricted to members of the adult entertainment community, but the definition also includes companies that supply products and services to the industry.
According to Lawley, flipping domain names falls into that category.
So, if you register a nice .xxx in order to sell it later to an actual pornographer, you’re technically part of the .xxx Sponsored Community. Congratulations, you’re in the adult business.
Parking .xxx domains will also be possible, and it doesn’t look like parking companies will need to make any changes in order to support the TLD.
It’s true that all .xxx sites will have to be “labelled” as porn, but that doesn’t mean, as I initially thought, that all .xxx web sites, including the parked ones, will have to slap a logo on their pages.
Lawley says that ICM will handle all the labelling transparently at the registry end, using a W3C standard called POWDER. Apparently this is doable without touching anybody’s HTML.
Of course, getting hold of a prime piece of .xxx real estate at launch will not be easy.
Anybody with designs on a geo .xxx domain is out of luck. ICANN will reserve all place names, and two-letter domains are banned, due to potential confusion with country codes.
But single-letter domains will be possible. The provision that banned it has been deleted from the new contract.
ICM plans to auction some premium names. It may even reserve some names, such as movie.xxx, in order to offer registrations at the third level.
An additional barrier is that roughly 9,400 people have already “pre-reserved” about 176,000 names (an average of 18 each). That’s about as many words as there are in the English language by some counts.
Quite how these reservations will be handled isn’t spelled out in detail in the contract, as far as I can tell.
The .xxx TLD is still in the application phase, of course, and there are ways it could still fail. If the contract is ultimately signed, general availability is expected seven months later.

ICANN posts .xxx contract for comment

ICANN has just published the proposed contract for ICM Registry’s porn-only .xxx top-level domain, and over a dozen supporting documents.
Now the fun begins!
Another 30-day public comment period is now underway, which will likely see more concerted efforts by the Free Speech Coalition and its accidental allies on the religious right to have .xxx killed off.
It will also be interesting to see whether the ICANN Governmental Advisory Committee decides to chip in with its $0.02.
The GAC has always been wary of the .xxx application and remains the tallest hurdle to jump before the TLD has a chance of being approved.
There’s a lot of information in these documents, including much more detail on IFFOR, the International Foundation For Online Responsibility, which will set the TLD’s policies.
I’m going to bury my nose in these docs, and will provide an update later if I find anything interesting, which seems likely.

ICANN releases (censored) board briefing docs

ICANN has given an unprecedented glimpse into the workings of its board of directors, with the release of hundreds of pages of staff briefing papers.
But the documents are quite heavily redacted, particularly when it comes to some of the more controversial topics.
The documents show what ICANN staffers told the board in the run-up to the Nairobi and Brussels meetings, dealing with important decisions such as .xxx and internationalized domain names.
The Brussels decision to put .xxx back on the track to approval sees more than its fair share of blacked-out text, but the documents do show that ICANN general counsel John Jeffrey’s recommendations were pretty much in line with how the board eventually voted.
Other topics seeing redaction include the implementation of DNSSEC at the root, the activities of the Internet Governance Forum, and specific discussion of IDN ccTLD delegations.
Some topics are deemed so sensitive that even the titles of the pages have been blacked out. But in at least one case somebody apparently forgot to redact the title from the PDF’s internal bookmarks.
So we know, for example, that a section entitled “Chronological-History-ICM” is deemed entirely unpublishable, even though ICANN has previously published a document with pretty much the same title (pdf).

Who voted against three Arabic ccTLDs and why?

Two ICANN board members voted against the recent resolution to grant Arabic top-level domains to Palestine, Jordan and Tunisia, it has emerged.
ICANN has published the preliminary report for its August 5 board meeting, which breaks down the votes for each of the 27 resolutions and provides a minuscule amount of color about the discussions.
While the resolutions approving internationalized domain names for Singapore and Thailand were carried unanimously and without discussion, the three Arabic-script IDNs were discussed and received two negative votes and three abstentions.
So which two board members voted against these ccTLDs and why?
Beats me. The IDN ccTLD fast track process is one area where ICANN is quite secretive, and the report does not break down the substance of the discussion or the identities of the directors.
Strangely, two resolutions I would consider much more controversial faced less opposition.
The report shows that the resolution passing ICM Registry’s .xxx domain to the next stage of approval was carried unanimously, and that only one director voted against the .jobs amendment.
ERE.net has more on the .jobs story.

Casino.com plotting top-level domain bid?

Is this the first gambling-related new top-level domain applicant?
Casino.com, in this frankly odd press release, seems to be dropping hints that it would be interested in applying for a new TLD when ICANN opens up the bids next year.
Discussing the controversy over the porn-only .xxx domain, the release goes on to say:

In spite of this, online casino sites are considering the idea of a unique domain as well, hoping that it will give them the same impact as governments and schools by using .gov and .edu.

It would of course be a huge shock if there were no gambling TLDs proposed in the first round.
I expect a .poker or .casino TLD could be quickly flipped for millions, given the potential value of their sunrise auctions. Casino.com itself was sold for $5.5 million, back in 2003.
Of course, actually applying to ICANN for .poker could be an expensive gambit. With multiple applicants, it’s one TLD that could easily head to auction.

Porno union will try to shaft .xxx

The fight between ICM Registry and the Free Speech Coalition over the proposed .xxx top-level domain is not over yet.
The porn trade group has a plan to block ICM’s passage through the ICANN process, and has already stepped up efforts to rally the adult entertainment industry to its cause.
Last weekend at the AVN Show in Florida, FSC chair Diane Duke reportedly said:

ICM is saying this is a done deal… but it is not a done deal. We [the FSC] have a strategy to block the application. I have spoken with people from ICANN, and they agreed that this is not a done deal.

Asked whether lawsuits would be required, Duke reportedly answered: “There are other avenues to block this.”
These comments and others suggest that the FSC intends to use ICANN processes to, at the very least, delay .xxx’s delegation.
A public comment period will be launched soon on the proposed ICM-ICANN registry contract. This will likely be oversubscribed by FSC supporters.
If the contract ends up being bounced to ICANN’s Governmental Advisory Committee for consideration, there’s another opportunity for FSC lobbying.
Then, crucially, if ICANN votes to approve .xxx, the FSC could attempt to temporarily block the actual delegation to the DNS root by filing a Reconsideration Request.
Under my reading of the Reconsideration procedure, the actual delegation of the TLD could be delayed by anything between 30 and 120 days. Possibly longer.
The FSC would need to show at the very least that it would be harmed by .xxx’s introduction. If successful, the best case scenario for the FSC would see the resolution approving .xxx bounced back to the ICANN board for a second vote.
Beyond that, there’s always an Independent Review Panel. For that, the FSC would need to show that the .xxx approval breached ICANN’s bylaws or articles of incorporation, which seems to me to be a more challenging proposition. Also very expensive.
Another interesting quote from the AVN article – reportedly Allan Gelbard, lawyer to John “Buttman” Stagliano, said that the adult industry may be unduly worrying because:

anti-trust and trademark legal challenges would be brought immediately following the final approval by the ICANN board

Make of that what you will.
There’s also a new anti-.xxx blog, written by Theresa “Dark Lady” Reed, containing a new “satirical” video spoofing ICM.
To be honest, the funniest thing about it for me was the decision to cast a handsome, shiny-toothed American anchorman type as British ICM president Stuart Lawley.

Governments want morality veto on new TLDs

ICANN’s Governmental Advisory Committee wants to be able to kill off new top-level domain applications on cultural and religious grounds.
The GAC has finally broken its radio silence on the “morality and public order” or “MOPO” issue that was such a hot topic at the Brussels meeting in June.
A letter to ICANN (pdf), sent by Canadian GAC chair Heather Dryden, leaves little room for doubt where the GAC stands.

The GAC firmly believes that the absence of any controversial strings in the current universe of top-level domains (TLDs) to date contributes directly to the security and stability of the domain name and addressing system (DNS) and the universal resolvability of the system.
As a matter of principle… the GAC believes that the object of stability, security, and universal resolvability must be preserved in the course of expanding the DNS with the addition of new top-level domains.

This is actually quite powerful stuff.
The GAC is basically saying that no new TLDs should be introduced that would be unacceptable to the lowest common denominator world government.
Think Uganda, asked to make a call on .gay.
Think about any oppressed ethnic group without a territory that wants to apply for its own TLD.
The GAC wants ICANN to create a process for governments and others to object to TLD applications on religious, cultural, linguistic, national and geographical grounds.
It could even result in .xxx being objected to, even though it’s technically part of the 2005 round of new TLDs – the GAC wants the objection process to apply to “all pending and future TLDs”.

.XXX to run the ICANN gauntlet yet again

Bring on the Christians!
The contract between ICANN and ICM Registry to run the .xxx adults-only top-level domain is to be submitted for an ICANN public comment period, again.
ICANN’s board resolved yesterday to publish the proposed registry agreement for comment for at least 30 days.
But it has not yet decided whether to refer the deal to its Governmental Advisory Committee, which remains ICM’s major potential pitfall on its route to the root.
As long as the public comment period kicks off quite soon, the ICANN board could be in a position to make that call at its weekend retreat, September 24.
The .xxx application has generated more public comment over the years than all other ICANN public comment periods combined.
Its last such period, earlier this year, saw thousands of comments, most of them filed in response to outreach by right-wing American Christian groups.
Objections are also regularly received from members of the Free Speech Coalition, a porn trade group.
I expect this forum will be no different. It will be interesting to see what tactics are rolled out this time, given previous failures.
Here’s the meat of the latest resolution:

RESOLVED (2010.08.05.21), upon receipt of ICM’s application documentation, ICANN Staff is authorized to post ICM’s supporting documents and proposed registry agreement for the .XXX sTLD for public comment for a period of no less than 30 days.
RESOLVED (2010.08.05.22), upon completion of public comment period, ICANN Staff shall provide the Board with a summary of the public comments and shall make a recommendation to the Board as to whether the proposed registry agreement for the .XXX sTLD is consistent with GAC advice.
RESOLVED (2010.08.05.23), once the Board has received the above public comment summary and recommendation from the ICANN Staff regarding the proposed registry agreement for the .XXX sTLD, the Board shall at its next possible meeting, consider this recommendation, and determine, consistent with the ICANN Bylaws, whether a GAC consultation shall be required.

Judgment day for .xxx and .jobs

ICANN’s board of directors will today meet to decide the fate of the .xxx and .jobs top-level domains.
ICM Registry will find out whether its contract to run .xxx will have to face a potentially lengthy review by ICANN’s notoriously slow-footed Governmental Advisory Committee.
Employ Media will find out whether it will be allowed to relax its registration rules to allow non-company-name .jobs domains.
If the board decides no further GAC intervention is needed, ICM will be on a fast track to having its TLD considered for delegation in Cartagena this December.
If Employ Media’s proposal is rejected, it faces more years in the wilderness of managing a registration base in the low tens of thousands.
I have a track record of lousy predictions, but I’m going to go out on a limb again and make a low-confidence prediction that both registries are going to get what they want.
I’m not sure if it’s been noted before, but there are some strong similarities between the two TLDs and their proposals.
In the case of .xxx, some of the main opponents of the domain have been the adult industry itself. With the .jobs liberalization, the loudest outcry has come from jobs boards.
Both are essentially cases of a registry proposing something that makes good business sense for itself, but which is not necessarily what a significant portion of its would-be constituents want.
In the case of ICM, lack of support from the porn business was what originally killed off the application (at least, that was the official line), a decision that ICANN was recently forced to reverse if not recant.
In the case of .jobs, ICANN’s recent summary and analysis of the well-attended public comment period, which the board will be given prior to voting, may be a telling.
Most of the opposition to the .jobs deal was organized by the International Association of Employment Web Sites, which itself sent a long letter spelling out precisely why it thinks the scheme is bogus.
Of the 2,600 words IAEWS submitted, ICANN’s summary and analysis document quotes just two sentences, one of which is this:

“Neither human resources professionals employed in corporate human resources (‘HR’) departments nor executive search/staffing firms [which are part of the .JOBS community] are eligible for membership in IAEWS.”

The quote is pulled from the introduction of the IAEWS letter, rather than the substance of its objection, and the text in square brackets is ICANN’s own insertion.
I can’t think of any reason that text is worth quoting other than in order to dilute the significance of the IAEWS’ arguments against the .jobs liberalization.
Indeed, the document uses more wordage to describe the nature of the IAEWS letter-writing campaign than it does the content of its letters, which can’t look good for the IAEWS.
Employ Media’s response to the IAEWS letter is quoted at greater length, particularly the bit where it compares its own plans to the new gTLD program.

While they claim that the addition of occupation, industry and geographical identifiers at the second level within the .JOBS sTLD will lead to increased confusion within the marketplace, it is hard to reconcile this argument to ICANN’s extensive public policy work and implementation plan in connection with the new gTLD process. The same fundamental economic basis for going forward with the whole new gTLD initiative also applies to this .JOBS RSEP request; these issues should not be re debated and should not delay or deny approval of the .JOBS RSEP request.

If you’re an ICANN board member, aware of how much of ICANN’s credibility is tied up with the new TLD program, can you really argue with that?
Of course, board and staff don’t always agree, so I may be way off the plot here, but it seems to me that .jobs is likely to very soon become a considerably more open namespace.