.xxx introduces the 48-hour UDRP

The forthcoming .xxx top-level domain will have some of the strictest abuse policies yet, including a super-fast alternative to the UDRP for cybersquatting cases.
With ICM Registry likely to sign its registry contract with ICANN soon, I thought I’d take another look at some of its planned policies.
I’d almost forgotten how tight they were.
Don’t expect much privacy
ICM plans to verify your identity before you register a .xxx domain.
While the details of how this will be carried out have not yet been revealed, I expect the company to turn to third-party sources to verify that the details entered into the Whois match a real person.
Registrants will also have to verify their email addresses and have their IP addresses recorded.
Whois privacy/proxy services offered by registrars will have to be pre-approved by ICM, “limited to services that have demonstrated responsible and responsive business practices”.
Registrants using such services will still have their full verified details stored by the registry, in contrast to TLDs such as .com, where the true identity of a registrant is only known to the proxy service.
None of these measures are foolproof, of course, but they would raise barriers to cybersquatting not found in other TLDs.
Really rapid suspension
The .xxx domain will of course abide by the UDRP when it comes to cybersquatting complaints, but it is planning another, far more Draconian suspension policy called Rapid Takedown.
Noting that “the majority of UDRP cases involve obvious variants of well-known trademarks”, ICM says it “does not believe that the clearest cases of abusive domain registration require the expense and time involved in traditional UDRP filings.”
The Rapid Takedown policy is modeled on the Digital Millennium Copyright Act. Trademark holders will be able to make a cybersquatting complaint and have it heard within 48 hours.
Complaints will comprise a “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”.
A “response team” of UDRP panelists will decide on that basis whether to suspend the domain, although it does not appear that ownership will be transferred as a result.
X strikes and you’re out
ICM plans to disqualify repeat cybersquatters from holding any .xxx domains, whether all their domains infringe trademarks or not.
The policy is not fully fleshed out, so it’s not yet clear how many infringing domains you’d have to own before you lose your .xxx privileges.
High-volume domain investors would therefore be advised to make sure they have clean portfolios, or risk losing their whole investment.
Gaming restrictions
ICM plans to allow IP rights holders to buy long-term, deep-discount registrations for non-resolving .xxx domains. As I’ve written before, Disney doesn’t necessarily want disney.xxx to point anywhere.
That would obviously appeal to volume speculators who don’t fancy the $60-a-year registry fee, so the company plans to create a policy stating that non-resolving domains will not be able to convert to normal domains.
There’s also going to be something called the Charter Eligibility Dispute Resolution Process, which which “will be available to challenge any resolving registration to an entity that is not qualified to register a resolving name in the .xxx TLD”.
This seems to suggest that somebody (think: a well-funded church) who does not identify as a member of the porn industry would be at risk of losing their .xxx domains.
The CEDRP, like most of the abuse policies the registry is planning, has not yet been fully fleshed out.
I’m told ICM is working on that at the moment. In the meantime, its policy plans are outlined in this PDF.

Porn group launches .xxx boycott

The Free Speech Coalition has made good on its promise to start a boycott of .xxx domain names.
The California-based porn industry association has just launched a “Just Say NO” campaign, in an attempt to persuade pornographers that .xxx domains are bad for business.

Do the math – it doesn’t add up. Even if ICM’s claims of new consumers who “trust” .XXX ring true, for a company like Kink.com, which has approximately 10,000 domain names, it would have to bring in three-quarters of a million dollars in new revenues annually JUST TO BREAK EVEN!

As well as the retail price of the domains, which currently estimated to be north of $70 per year, the FSC has laid out a bunch of other reasons why it believes .xxx is a bad investment.
These include the fact that some countries (I’m aware of Saudi Arabia and India) have said they intend to block .xxx domains, and that this may make some high-traffic web sites wary of linking to them.
It’s also critical of how .xxx sites will have to comply with policies created by the International Foundation For Online Responsibility, which ICM is setting up to “sponsor” .xxx.
But perhaps the most telling quote in the FSC’s press release comes from its executive director, Diane Duke. She said:

FSC acknowledges and respects that, when push comes to shove, businesses need to do what they think is best for their company. That is why adult companies need to know the implications of purchasing .XXX domain names and why buying .XXX could be the worst investment they’ll ever make.

While FSC makes good points, I agree with Mike Berkens of TheDomains. I just can’t see a boycott working, and the end result may just be to just make FSC look naïve.
If you’re a pornographer, and you think there’s even an outside chance of .xxx taking off, would you risk declining to defensively register your brands on a matter of principle?
The cost of enforcing trademarks — if you have one — via the UDRP post-sunrise would be larger than simply registering them up-front, and there would be no guarantee of success.
It’s a big risk, one that I can’t see many potential registrants taking.
Some in the porn business even believe that some webmasters publicly decrying .xxx are doing so primarily to reduce competition for the premium real estate. Writing in Xbiz, Stephen Yagielowicz said:

some of your “friends” that are telling you to avoid the new adult domain extension, are speculators hoping to lessen the competition for premium .XXX names; while others are mere hucksters, seeking to profit by offering “an alternative TLD” — such as .adult, .porn, .sex or “dot-whatever-does-not-involve-Stuart-Lawley”

.xxx reservations pass half a million

ICM Registry has now taken over 500,000 reservations for .xxx domain names.
The counter on its web site ticked up by about 150,000 overnight. This was apparently due to the bulk uploading of large requests from several dozen enthusiastic potential registrants.
ICM tells me that these are all requests for unique domains, not counting duplicates, and that over 100,000 requests were not added because they did not appear to come from legit sources.
The counter was around the 200,000 mark last Friday, before ICANN approved ICM’s .xxx registry contract. The deal generated substantial media interest.
Again, it’s worth noting that none of these reservations are guaranteed to convert into sales, they’re basically just requests to be notified when the domains become available.
The price of a .xxx domain is expected to be at least $70 a year, which could scare off some buyers.
Still, coupled with landrush and Founders Program sales, I’m fairly confident that ICM, which spent about $12 million fighting ICANN for .xxx, will recoup its investment before the end of the year.

Canon’s sexy reason for .canon?

Canon made headlines and gave a small amount of momentum to the idea of “.brand” top-level domains when it announced, a year ago, that it would apply to ICANN to manage .canon.
There are plenty of good reasons why the company would want the TLD.
Beyond the more obvious search-oriented branding opportunities, some say Canon could try to boost customer loyalty and create new revenue streams by offering camera buyers services such as photo hosting at personalized .canon domains.
But here’s another reason that doesn’t seem to have received many column inches: as I recently discovered from a few continental friends, “canon” also means “sexy” in French slang.
I expect this coincidence was the very least of Canon’s concerns when its executives met to discuss their .brand TLD strategy, but it does highlight a major issue that some companies will have to deal with when the ICANN new gTLD program gets underway.
They may think their brand is unique, but unless they’ve done their homework they may find themselves competing with, or blocked by, equally legitimate applicants from other nations.
Companies planning to participate in the program – even only as a challenger – will need to have done a fairly daunting audit of their key brands if they want to avoid nasty surprises.
Ensuring a brand is a unique, registered trademark in one’s home territory is only the beginning.
Companies need to also ask themselves what, if anything, their mark means in other languages, what it looks like in non-Latin scripts such as Arabic and Chinese, and whether it has similarity of “appearance, phonetic sound, or meaning” to any other potential new TLD string.
We already have at least one double entendre in the DNS – the ccTLD for the tiny Pacific island of Niue, .nu, means “.naked” in French, as the registry discovered to its benefit many years ago.
If Canon had not decided to apply for .canon, could a French-speaking pornographer have applied for the TLD instead, on the quite reasonable basis that it is also a “generic” string?
ICANN’s trademark protection policies would make such a delegation highly unlikely, but Canon would have found itself forced into a defensive fight to protect its mark.
Of more immediate concern to the company is of course the question of who gets to register canon.xxx.
It seems likely that ICM Registry’s sunrise policy is strong enough to ensure that this particular .xxx domain is never used for pornography, but only if a) no existing pornographer has a trademark on the string and b) Canon remembers to defensively register.
In the unlikely event that Canon forgets to defend its mark, a pornographer who registered canon.xxx for a legitimate French porn site could well find himself with a UDRP-winning domain.
And don’t get me started on Virgin…

US upset with ICANN over .xxx

The US government has expressed disappointment with ICANN for approving the .xxx top-level domain, surprising nobody.
Fox News is reporting Lawrence Strickling, assistant secretary at the Department of Commerce and one of ICANN’s keynote speakers at the just-concluded San Francisco meeting:

We are disappointed that ICANN ignored the clear advice of governments worldwide, including the US. This decision goes against the global public interest, and it will open the door to more Internet blocking by governments and undermine the stability and security of the Internet.

As I reported Friday, ICANN used a literal interpretation of its Governmental Advisory Committee’s advice in order to make it appear that it was not disagreeing with it at all.
Essentially, because the GAC didn’t explicitly say “don’t delegate .xxx”, the ICANN board of directors was free to do so without technically being insubordinate.
Whether the GAC knew in advance that this was the board’s game plan is another question entirely.
Strickling is of course duty-bound to complain about .xxx – no government wanted to be seen to associate themselves with pornography – but he’s in a unique position to do something about it.
Strickling heads the National Telecommunications and Information Administration, the named “Administrator” of the DNS root and ergo ICANN’s overseer.
It’s within his power to refuse to instruct VeriSign to inject .xxx into the DNS root system, but it’s a power few observers expect him to exercise.
As Milton Mueller of the Internet Governance Project noted yesterday:

If the US goes crazy and interferes with XXX’s entry into the root it will completely kill ICANN and open a Pandora’s box for governmental control of the DNS, a box that will never be closed.

Dire consequences indeed. It’s unlikely that the NTIA would risk killing off the ICANN project after so many years over a bit of T&A.

ICM sees 30,000 .xxx reservations in a day

ICM Registry is rapidly approaching the 250,000 mark for “pre-reserved” .xxx domain names, after racking up an extra 30,000 expressions of interest in less than 24 hours.
The counter on the ICM web site currently shows 243,972 domains have been reserved, compared to 211,942 at this time yesterday.
The counter ticked up by 2,000 domains in the 20 minutes it took me to write this post.
(UPDATE: The number of pre-reservations just passed 250,000, 24 hours after .xxx was approved.)
ICANN approved the .xxx top-level domain shortly after noon Pacific time yesterday, generating blogosphere buzz, a ton of Twitter traffic, and dozens of media stories worldwide.
An extra 30,000 domains is the same ball park as .CO Internet received following its commercial on Super Bowl Sunday last month.
But these free .xxx reservations will not necessarily translate into paid-for registrations, of course. Many people will be scared away from the fee, which I estimate is likely to be $70 to $100 a year.
But even if just one fifth convert, we’re talking about $2.5 million annually into ICM’s pocket, and another $500,000 to fund IFFOR, its sponsoring body. ICM expects to have at least 300,000 registrations in this first year.

How ICANN overruled governments on .xxx

In approving the .xxx top-level domain, ICANN has for the first time explicitly overruled the wishes of international governments, as represented by its Governmental Advisory Committee.
In its rationale (pdf) for the decision, ICANN explains why it chose to disregard the GAC’s views.
There are two pieces of GAC advice that have been quite important. One was delivered in Wellington in 2007, the other was delivered yesterday
The Wellington GAC Communique noted that “several members of the GAC are emphatically opposed from a public policy perspective to the introduction of a .xxx sTLD.”
That was repeated during a terse, 10-minute “bylaws consultation” on .xxx yesterday, during which the the GAC also said “there is no active support of the GAC for the introduction of a .xxx TLD”.
ICANN chose to reject (kinda) both of those pieces of advice, on the basis of a quite literal interpretation — that GAC support was unnecessary and the advice was not specific enough:

There is no contradiction with GAC advice on this item. Active support of the GAC is not a required criteria in the 2004 sTLD round. Further, this is not advice from the GAC either to delegate .XXX or to not delegate .XXX, and therefore the decision to delegate .XXX is not inconsistent with this advice.

Unfortunately, this gives pretty much no clue to how the board will treat minority GAC positions in future, such as when some governments object to new gTLDs.
But companies planning to apply for potentially controversial TLDs can take heart from other parts of the rationale.
For example, the board did not buy the notion that .xxx should be rejected because some countries are likely to block it.
Saudi Arabia has already said it intends to filter out .xxx domains.
The GAC was worried that this kind of TLD blocking would lead to a fragmented root and competing national naming systems, but ICANN wasn’t so sure. The rationale reads:

The issue of governments (or any other entity) blocking or filtering access to a specific TLD is not unique to the issue of the .XXX sTLD. Such blocking and filtering exists today. While we agree that blocking of TLDs is generally undesirable, if some blocking of the .XXX sTLD does occur there’s no evidence the result will be different from the blocking that already occurs.

It’s been noted that some Muslim countries, for example, block access to Israel’s .il domain.
One director, George Sadowsky, dissented from the majority view, as is his wont. In a lengthy statement, he named stability as one reason he voted against .xxx.
He said “the future of the unified DNS could be at stake” and “could encourage moves to break the cohesiveness and uniqueness of the DNS”.
He drew a distinction between the filtering that goes on already and filtering that would come about as a direct result of an ICANN board action.
He was, however, in the minority, which makes proposed TLDs such a .gay seem likely to get less of a rough ride in future.

.xxx domains could arrive by June

ICANN’s board of directors today approved the .xxx top-level domain, over the objections of governments and pornographers.
The vote was 9 to 3 in favor, with three directors recusing themselves due to conflicts of interest and the CEO abstaining (pretty typical for votes on .xxx over the years, I think it’s a liability thing).
Assuming the US government, which controls the DNS, doesn’t try the nuclear option of overruling ICANN, .xxx could make it into the root about 10 days from now.
Now expect ICM Registry to ramp up the marketing quite quickly – it’s aiming to launch the first of its three sunrise periods in mid-June, just three months from now.
We’re looking at a landrush certainly before the end of the year.
While ICM, in a press release today, said .xxx domains “will only be available to the adult entertainment industry”, the industry is self-defining, and president Stuart Lawley has previously stated that flipping porn domain names counts as an industry service.
Domain investors are welcome, if not necessarily encouraged, in other words.
I hear ICM has already reached out to registrars, giving them a mid-April deadline to apply to be evaluated.
The TLD launching on schedule will of course also depend on whether any legal action is taken to stop it. Diane Duke, executive director of the Free Speech Coalition, a porn trade group, said at a press conference yesterday that the FSC is thinking about suing.
She also said that it may arrange some kind of boycott, which strikes me as a terrible idea – how many pornographers will refuse to defensively register their .xxx domains out of principle? Very few, I suspect.
The FSC said last week that it was also looking into a Reconsideration Request or an Independent Review Panel procedure, which are the only two real avenues of appeal through ICANN.
An IRP could be more expensive than a lawsuit, and if precedent is any guide even a successful Reconsideration would be moot – it would take at least a month, by which time ICM’s registry contract would be long since signed.
It seems likely that ICM’s long, strange, expensive journey into the DNS may finally be at an end.

Porn rally underway at ICANN San Francisco

A small group of Free Speech Coalition supporters are currently holding a protest against the .xxx top-level domain, outside the ICANN meeting in San Francisco.
The rally outside the Westin St Francis hotel on Union Square has attracted about 25 people by my count, chanting slogans such as “We want porn! No triple-X!”
Noted porn producer/performer John “Buttman” Stagliano is among them, although he seems to be keeping to the sidelines.
Not to judge, but another of the protestors appears to be the same homeless guy who’s been bothering me for change and cigarettes all week.
Also attending, first amendment attorney Paul Cambria. There’s an unsubstantiated rumor he’s ready to serve ICANN and/or ICM Registry with a lawsuit if .xxx gets approved tomorrow.
He declined to comment on the rumor.
There’s an FSC press conference shortly, and Cambria tells me he’s going to be making a statement at the ICANN public comment forum later this afternoon.
I’ll update when it becomes clearer what the FSC’s game-plan is.

ICM picks new sunrise partner for .xxx launch

ICM Registry has hired IP Rota, a new London-based company, to handle trademark validation in the sunrise periods of the forthcoming .xxx top-level domain.
IP Rota is the work of NetBenefit co-founder Jonathan Robinson, who also currently sits on the boards of Nominet and Afilias, .xxx’s back-end partner.
The company replaces Valideus, which was originally recruited to design and implement ICM’s sunrise policies, apparently due to grumblings from rival registrars. ICM said:

Valideus was originally retained by ICM to assist with the design of the .XXX launch but graciously withdrew from implementation of the initial rights protection mechanism because of the potential for perceived conflict of interest with a related domain name registrar, Com Laude.

Com Laude is a registrar specialising in corporate brand protection. It shares ownership with Valideus.
ICM is planning three sunrise periods for .xxx, including one that would let trademark holders not in the porn business to pay a one-time fee to have their brand.xxx placed on a reserved list.
The .xxx TLD contract still has not been approved by ICANN, of course. Barring last-minute surprises, that could happen as soon as the ICANN board meeting, March 18.
The registry is IP Rota‘s first client.