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ICM opens can of worms with .xxx domain seizures

Kevin Murphy, December 14, 2011, Domain Registries

ICM Registry has suspended several dozen .xxx domain names registered by cybersquatters.

It’s believed to be unprecedented for a mainstream registry to unilaterally shut down domains purely on the grounds of alleged cybersquatting, as I reported for The Register earlier today.

ICM took down 70 to 80 domains including washingtonpost.xxx, cnbc.xxx and verizonwireless.xxx because it decided that the domains infringed trademarks and were therefore abusive.

Many belonged to the squatter Domain Name Wire first fingered as the registrant of huffingtonpost.xxx, named in Whois as Justin Crews.

Crews had told MSNBC that he planned to sell the domains at profit.

There was no UDRP arbitration, no court order, just a breach of the .xxx registry-registrant agreement, which gives ICM the right to suspend squatted domains at will.

This is the relevant part of the agreement, which all .xxx registrants must agree to:

You acknowledge and agree that the Registry reserves the right to disqualify you or your agents from making or maintaining any Registrations or Reservations in the .XXX TLD if you are found to have repeatedly engaged in abusive registrations, in its sole discretion.

I 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 others.

Nevertheless, while it may take a while for the implications to become clear, I think the suspensions represent a very significant development.

Coming so soon after the end of ICM’s sunrise period, which saw many organizations spend thousands on useless non-resolving defensive registrations, I wouldn’t be surprised if many companies feel like they may have wasted their money.

If you’ve just spent $200 defending your brand, I imagine it would be quite annoying to see the likes of verizonwireless.xxx or businessweek.xxx get the same protection for free.

I would also not be surprised if, from now on, trademark attorneys trying to defend their rights in .xxx first contacted ICM, rather than WIPO or the National Arbitration Forum.

Why spend thousands on a UDRP complaint when you can just send a legal nastygram to ICM?

ICM president Stuart Lawley told DI today that this wave of suspensions was done independently, not in response to any legal demands.

Still, the precedent has been set: ICM will suspend domains for free, under certain circumstances.

What those circumstances are is less clear.

Lawley said that ICM will not get involved in complaints about individual domains – but it will shut down cybersquatters with multiple infringements.

But what constitutes cybersquatting? UDRP has a definition, but I’m not sure ICM does. It may be quite subjective.

It’s also not clear what ICM will do with the suspended domains, not all of which necessarily infringe trademarks. Some may be bona fide, but the ICM policy is to take down the registrant’s entire portfolio.

So will those non-infringing domains be released back into the pool? And if so, how will ICM determine which are squats and which are not?

And what about the ones that are squats? Will they be released?

AOL may be content for huffingtonpost.xxx to remain suspended forever. As long as it’s suspended, the company does not have to worry about defensive registration fees.

But consider gayroom.xxx, which was also suspended.

The owner of gayroom.com owns a trademark on the word “gayroom”. Gayroom.com is a porn site, but one that has chosen not to buy its equivalent .xxx domain.

What if it changes its mind? If gayroom.com wants gayroom.xxx in future, is there a way to take it out of suspension, or is the company stuck without its .xxx forever, just because a cybersquatter got there first?

ICM’s policies do not seem to answer this question and the company has not yet revealed its plans for the suspended domains.

As a post-script, I should note that Huffington Post owner AOL is currently listed as the registrant of huffingtonpost.xxx in the Whois record.

It’s not yet clear why this is the case, but Lawley stated unequivocally today that the apparent transfer is completely unrelated to ICM’s own crackdown.

Go Daddy, the registrar of record for the domain, declined to comment, citing its customer privacy policy.

Did the cybersquatter transfer the domain to AOL before the suspension? Did he sell it to AOL? Or did he just update the Whois with phoney data? Either seems possible at this point.