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Will Larry Flynt sue over .xxx domains?

Kevin Murphy, July 13, 2011, Domain Registries

The porn publisher Hustler is “prepared to take whatever legal action may be necessary” to stop ICM Registry letting people register its trademarks in .xxx, according to a report.
I’ve been hearing rumors for several weeks that some companies are so unhappy about having to pay to block their brands in .xxx that they may consider legal action.
Now Xbiz reports that Hustler has said it refuses to be “shaken down” by the registry, but that ICM has not responded to its written demands for protection.
But will the company sue ICM (and ICANN?) over what may amount to just a few thousand dollars in defensive registration fees? And on what grounds?
In the US, the Anticybersquatting Consumer Protection Act, which has been on the books since 1999, is rather friendly to registries unless they behave really, really badly.
ICM will have some of the strongest trademark protection mechanisms of any gTLD, suggesting that it could have quite a strong defense to a cybersquatting claim.
Hustler could of course decide to sue based on a different law.
Threats of lawsuits are something that new gTLD applicants will need to bear in mind if they plan to apply for a TLD that encompasses an industry or community, as .xxx does.
Even if applicants manage to win the support of a portion of the affected industry, community members that think they’re likely to be cybersquatted or lose valuable real estate may well resort to the courts.
This is why about 30% of every new gTLD application fee goes into an ICANN war chest reserved in part for legal fees. ICANN knows what could be coming down the pike.
Xbiz quoted Hustler attorney Jonathan Brown saying: “We are constantly policing the registration and use of domain names that attempt to capitalize on Hustler’s trademarks.”
But the record shows that the company does not appear to be an especially aggressive enforcer of its marks in other top-level domains.
The magazine’s parent, LFP, has filed 29 UDRP complaints since 2002, all relating to Hustler and Barely Legal and, apart from hustler.tv, all for .com domains. The most recent filing was in 2009.
The company does not own the string “hustler” in .net, .org, .info, .biz or in a number of high-visibility ccTLDs that I checked. It does, however, own hustler.mobi.

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Another new gTLD consultancy launches

Kevin Murphy, July 12, 2011, Domain Services

ITEMS International, a Paris-based consulting firm, has launched a practice to specialize in helping new top-level domain applicants with their ICANN proposals.
The firm says it has more than 20 consultants on gTLD Team, based around Europe and North Africa, including one former ICANN board member and a few other ICANN regulars.
ITEMS says it has previously worked with the .fr registry, AFNIC, and has been contracted to support applications by the Burgundy Region Council and other undisclosed company.
It appears that the company plans to largely focus on geographic and dot-brand applications.

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Confirmed: Go Daddy bought NoDaddy.com

Kevin Murphy, July 12, 2011, Domain Registrars

Go Daddy has confirmed that it has acquired the domain name nodaddy.com, which until recently was the address of a gripe site frequented by the registrar’s biggest critics.
“Sometime in July we reached an agreement between Insecure.Com LLC and GoDaddy.com to transfer the domain name NoDaddy.com,” a Go Daddy spokesperson confirmed.
I’ve reported on the deal for The Register, here.
I should probably offer apologies to Toby Harris for disbelieving him, without doing my own checking, when he speculated that Go Daddy had bought out the site’s original owner.

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Go Daddy’s Bob Parsons set for Forbes rich list

Kevin Murphy, July 12, 2011, Domain Registrars

Go Daddy founder and executive chairman Bob Parsons is likely to be included on the next Forbes 400 list of wealthiest Americans, according to Forbes reporter Luisa Kroll.
Kroll estimates that Parsons will be worth at least $1.5 billion following the closure of its recent reported $2.25 billion investment with KKR, Silver Lake and Technology Crossover Partners.
That valuation would place Parsons at #269 on the current Forbes rich list.
He would rank higher than former AOL CEO Steve Case, Facebook co-founder Eduardo Saverin, former eBay chief Meg Whitman and Yahoo’s Jerry Yang.
Parsons, whose public image is largely that of a regular guy fulfilling the American dream, reluctantly admitted that he may belong on the list, although he does not consider himself a billionaire, Kroll blogged.
“I am going to give most of the proceeds to a foundation,” Parsons reportedly said.

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Wiki to shake up the new gTLD market

Kevin Murphy, July 7, 2011, Domain Registries

Tens of thousands of dollars worth of registry secret sauce is set to be released under a Creative Commons license on a new wiki, courtesy of the International Telecommunications Union.
Applying for a new generic top-level domain could be about to get a whole lot cheaper.
Before October, the ITU plans to publish template answers to all 22 of the questions about registry technical operations demanded by ICANN’s Applicant Guidebook.
Because they will be published under a Creative Commons license, new gTLD applicants will be able to copy and paste the whole lot into their applications for free.
And because they will be on a wiki, approved contributors will be able to fine-tune the templates to increase their chances of passing ICANN’s technical evaluation.
Currently, gTLD applicants are generally paying registry back-end providers to take care of this part of their applications, paying $10,000 and up for the privilege.
I think the word that applies here is “disruptive”.
Consultant and former ICANN board member Michael Palage, who has worked on a number of previous TLD launches, is coordinating the creation of the templates with input from registries and engineers.
The resulting “best in class” material will also be used by the ITU and the League of Arab States in their bid for .arab and its Arabic equivalent, .عرب.
According to the Guidebook, applicants do not need hands-on experience running a registry in order to have their application approved. ICANN is trying to enable competition, after all.
But there is a period of pre-delegation testing that each successful applicant must endure before their new gTLD is added to the root, so a simple copy-paste of the ITU’s templates will not suffice.
I doubt this project will take a great deal of money out of the pockets of the incumbent registries – well-funded applicants will presumably be happy to pay the extra money for certainty – but it will provide a bit of flexibility for applicants not already in bed with a back-end.
It could also help open up the new gTLD market to companies that may not have otherwise considered it, such as those in the developing world.
Indeed, part of the rationale for the Creative Commons publication is to aid with “capacity building” in these nations, according to an ITU presentation delivered in Cairo this week.
We’ve already seen pricing competition hit the registry services market in the wake of the approval of the new gTLD program, now it appears we’re seeing the dawn of “free”.

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Firm offers .xxx trademark checks

Kevin Murphy, July 7, 2011, Domain Tech

We’ve seen domain “reservation” services and “preregistration” services, now the soon-to-launch .xxx top-level domain is getting a pre-sunrise trademark verification service.
Trademark Fact Check is a new offering from EnCirca president Tom Barrett and Mark Kudlacik, formerly of NetNames and now president of Checkmark Network.
It’s an automated tool for checking whether a trademark will qualify for the .xxx sunrise period – and the sunrise periods of other new gTLDs – according to the service’s web site.
The output, among other things, consists of a list of domain names you qualify to register in the sunrise.
It supports about 30 national jurisdictions.
Checks will cost $10 a pop, but Barrett and Kudlacik think they can save applicants money.
If a sunrise application is rejected due to a filing error, the only option is to pay again to file again, which for .xxx is likely to cost at least $200 with the cheapest registrars.
There’s a money back guarantee if Trademark Fact Check says an application will pass and it does not.
I’m not sure how much of a market there will be for this kind of thing when the new gTLDs start to launch in 2013 and sunrise trademark validation will be largely handled by the Trademark Clearinghouse.

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Victoria’s Secret seizes swimsuit domain, again

Kevin Murphy, July 6, 2011, Domain Policy

The lingerie retailer Victoria’s Secret has won a cybersquatting complaint over the domain name victoriasecretswimsuit.com for the second time in as many years.
Judging by the Whois history, it appears that the company lost the domain following the demise of rogue registrar Lead Networks, which lost its accreditation last year.
Victoria’s Secret first secured the domain with an easily won UDRP complaint in May 2009.
An attorney from its outside law firm was subsequently listed as the admin contact, but the registrar of record remained the same – the Indian outfit Lead Networks.
At some time between August and October last year, the Whois contact changed to the current registrant, who’s hiding behind a privacy service.
Probably not coincidentally, that was about the same time as ICANN, having terminated Lead Networks’ accreditation, bulk-transferred all of its domains to Answerable.com.
Lead Networks was placed into receivership in March 2010 following a cybersquatting lawsuit filed by Verizon.
Answerable.com, a Directi business also based in India, was the registrar’s designated successor under ICANN’s policies. It has subsequently changed its name to BigRock.com.
The latest UDRP decision does not explain how Victoria’s Secret managed to lose its registration, but I’d speculate the inter-registrar transfer may have had something to do with it.
When a registrar loses its accreditation the names are transferred to a new registrar but the term of the registration is not extended. If a registrant ignores or does not receive the notifications sent by the gaining registar, they may find they lose their domains.

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Thousands of short .co domains available

Kevin Murphy, July 6, 2011, Domain Registries

The .co registry may have sold over a million domains since it launched a year ago, but there may be quite a bit of potentially valuable real estate still available.
.CO Internet said in its registrar newsletter this week that, as of May 31, 51.2% of three-letter domains and 71.1% of three-character combinations were still available.
On the back of the envelope I’m looking at, that works out to about 9,000 three-letter names and about 33,000 three-letter/number domains.
No three-letter domains are available for the basic registration fee in .com.
Three-letter domains are often considered fairly safe investments by domainers, from a cybersquatting risk perspective, but UDRP panelists don’t always agree.
UPDATE: In response to a few skeptical reader comments, I pinged .CO for clarification. It turns out that the quoted percentages include the seven Spanish IDN characters that .CO allows — á, é, í, ó, ú, ñ, ü.
Domains including these strings would presumably be far less appealing to registrants, and not all .co registrars offer IDN characters.
The number of pure ASCII three-letter domains available in .co is presumably much, much lower than my envelope math suggested.

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ICANN has $750k to advertise new gTLDs

Kevin Murphy, July 6, 2011, Domain Registries

Don’t all rush at once.
ICANN is looking for an advertising agency to help it get the word out about the new generic top-level domains program, but it only has $750,000 to spend.
The organization published a request for proposals last night.
The budget is not much in the advertising world, especially considering that ICANN’s awareness program will have to be global and multilingual to be truly effective.
With such a limited budget, the RFP and accompanying FAQ acknowledges that it will need “creative solutions” from its ad agency.
This is likely to mean a big PR push for advertising equivalent editorial – lots and lots of news stories about new gTLDs.
To an extent, the word is already out by this measure. My standing Google News and Twitter searches for “ICANN” have been going crazy since the gTLD program was approved two weeks ago.
I think it’s fair to say that the vast majority deal of the coverage so far has been either neutral or negative, with much of the focus on potential legal, branding and security problems.
That’s pretty much par for the course in the domain name business, of course.
And ICANN does not necessarily need positive spin – it’s trying to raise awareness of the program’s existence, and negative coverage does that job just as well.
There is, as they say, no such thing as bad publicity.
ICANN’s job of promoting the program is already being done to a large extent by the registries, many of which were investing heavily in media outreach before new gTLDs were approved.

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Buy a .com in England, go to jail in America?

Kevin Murphy, July 5, 2011, Domain Policy

People who register .com or .net domain names to conduct illegal activity risk extradition to the United States because the domains are managed by an American company.
That’s the startling line reportedly coming from the Immigration and Customs Enforcement agency, which is trying to have the British operator of TVShack.net shipped out to stand trial in the US.
According to reports, 22-year-old student Richard O’Dwyer is fighting extradition to face charges of criminal copyright infringement.
ICE assistant deputy director Erik Barnett told The Guardian that any overseas web site using a .com or .net address to spread pirated material is a legitimate target for prosecution in the States.
The agency has already started shutting down .com and .net sites by seizing their domains, even if the sites in question had been found legal in their own overseas jurisdictions.
It does so by serving a court order to VeriSign, the registry manager, which is based in Virginia. The company is of course obliged to obey the order.
TVShack.net provided links to bootleg movies and TV shows, rather than hosting the content itself. It appears to be a matter of some confusion in the UK whether that behavior is actually illegal or not.
The site reportedly was hosted outside the US, and O’Dwyer never visited the US. The only link was the domain name.
I’m British, but DI is a .com, so I’d like to exercise my (presumed conferred) First Amendment rights to call this scenario utterly insane.
The issue of legal jurisdiction, incidentally, is one that potential new gTLD applicants need to keep in mind when selecting a back-end registry services provider.
Most incumbent providers are based in the US, and while we’ve seen plenty of upstarts emerge in Europe, Asia and Australia, some of those nations sometimes have pretty crazy laws too.

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