There’s a pretty ludicrous report in the Australian media today, claiming that Aussie businesses are being forced to pay AUD $400 million to ICM Registry to protect their brands in .xxx.
The laughable number ($411 million) appears to have been fabricated from whole cloth. The report in the Murdoch-owned Herald Sun does not even bother trying to source or justify it.
But it’s becoming increasingly clear that ICM is going to make some money out of its .xxx sunrise, including from Sunrise B – the one-time defensive “blocks” that do not result in a domain registration.
The company priced Sunrise B at $162 per domain based on an assumption that it would see 10,000 of them. Any fewer and it would lose money, any more and it would profit.
According to official registry reports, no TLD launched in the last five years – .asia, .co, .jobs, .mobi – saw more than about 10,000 domains defensively registered during its sunrise period.
But my hunch is that .xxx will blow those out of the water. I would not be at all surprised if the final number tops 20,000 names.
It’s just a hunch at this point, based on a comparison to the .co launch – which had a reported 11,000 sunrise applications last year – and four main assumptions:
First, that 10,000 was a conservative estimate. I don’t think ICM would have risked making a big loss.
Second, based on a very small number of conversations, I think that some companies are not taking any chances. They’re applying for blocks in more second-tier brands that maybe they strictly need to.
Third, ICM has a much larger registrar channel than .co enjoyed, and much more aggressively FUDdy registrar marketing tactics.
ICM has approved about 70 registrars, compared to the 10 that .CO Internet had at launch, and a lot of registrar promotion has focused on the “Protect Your Brand!” angle, which was discouraged by .co.
Fourth, the vast amount of mainstream media attention the .xxx sunrise has been receiving, most which has doggedly followed the same line as the registrar FUD.
While the value of defending against typosquatting during the .co sunrise last year was probably more important to trademark holders from a security and traffic loss perspective, the brand protection angle did not receive nearly the same amount of press as .xxx has.
ICM president Stuart Lawley has done dozens of media interviews since the sunrise kicked off last week. I even heard him on a UK radio news show aimed at teenagers.
And this press has been going on for over six years, remember. ICANN first approved .xxx in 2005, and the story has been in and out of the media ever since.
It’s worth noting that a Sunrise B block, with its one-time fee, basically denies ICM Registry a bunch of recurring revenue events forever.
Nike is going to be paying $20 to .CO Internet for its defensively registered nike.co domain name every year until the end of time, in addition to the up-front sunrise fee.
If it blocks nike.xxx, it will pay $162 to ICM now but it will also deny the registry its $60 fee for every year it could have been a renewing domain. In three years, ICM’s losing revenue.
But Sunrise B is very probably going to be profitable for ICM. At 20,000 applications, its top line would be $3.24 million, with profit probably pushing seven figures.
Nowhere near $411 million, obviously, but not a bad payday for selling domain names that will never resolve.
Is Google experimenting with swapping out .com domains when an equivalent .xxx exists?
Last week, ICM Registry announced it had granted ifriends.xxx to iFriends, a popular network of adults-only webcams, as part of its pre-launch Founders Program.
Today, a Google search for iFriends sometimes returns ifriends.xxx right at the top, with ifriends.com nowhere to be seen on the first page.
Other times, ifriends.com or ifriends.net gets top billing.
The iFriends network has been around since 1998, according to an ICM press release, so its .com and .net domains will presumably already have significant juice.
Obviously, Google has been useless for returning easily predictable results ever since it started “personalizing” SERPs a couple years back.
Running a few non-scientific experiments, it seems that the choice of browser, toolbar, Google site and location may play a factor in which results you see.
The significant thing seems to me to be the fact that when your results do include the .xxx domain first, it appears to completely replace the .com.
What do you see when you search? What do you think is going on?
ICM Registry has banned a whole bunch of celebrity names from the new .xxx top-level domain, in order to scupper cybersquatters and opportunistic porn webmasters.
Want to register Beyonce.xxx, AngelinaJolie.xxx, OlsenTwins.xxx, Madonna.xxx, BritneySpears.xxx, KimKardashian.xxx, HalleBerry.xxx or WinonaRyder.xxx?
How about JustinBieber.xxx, BradPitt.xxx, CharlieSheen.xxx, SimonCowell.xxx, GeorgeMichael.xxx, EltonJohn.xxx, VerneTroyer.xxx, DonaldTrump.xxx or OsamaBinLaden.xxx?
Forget it. According to Whois records, you’re out of luck on all counts. They’ve all been reserved by the registry.
These are all among what I’m guessing is at least hundreds – maybe more – of celebrity names that ICM has blocked from ever being registered.
The company won’t say how many celebrities have been afforded this privilege, or how it came up with the list, but it has said in the past that a total of about 15,000 domains have been registry-reserved.
That also includes the names of the world’s capital cities, culturally sensitive strings put forward by a handful of governments, and the “premium” names that ICM plans to auction.
I’m wondering what the cut-off point is for celebrities. How famous do you have to be to get your .xxx blocked by default by the registry? B-List minimum? D-List? What database is ICM using?
American Pie actor Tara Reid just entered Celebrity Big Brother here in the UK, which pretty much means her career is over, and she’s managed to make it to ICM’s reserved list.
While ICM has always said it would help protect personal names from abuse, it’s never been entirely clear about how it would go about it.
Its registry agreement with ICANN has for some time said that “unauthorized registration of personal names” would be forbidden, but there were no real details to speak of.
As I reported last week, its souped-up cybersquatting policy, Rapid Evaluation Service, has a special provision for personal names.
But presumptively blocking a subset of the world’s famous people from .xxx is bound to raise questions in the wider context of the ICANN new gTLD program, however.
If ICM can protect Piers Morgan’s “brand”, why can it not also protect CNN? Or Microsoft or Coke or Google? None of these brands are registry-reserved, according to Whois.
The trademark lobby will raise this question, no doubt. ICM has its own celebrity Globally Protected Marks List for .xxx, which only applies to individuals, they could argue.
There are some differences, of course.
Celebrities sometimes find they have a harder time winning cybersquatting complaints using UDRP if they have not registered their names as trademarks, which can be quite hard to come by, for example.
(UPDATE: And, of course, they may not qualify for ICM’s sunrise period if they don’t have trademarks, as EnCirca’s Tom Barrett points out in the comments below).
In addition, celebrity skin is a popular search topic on the web, which may give cybersquatters a greater impetus to register their names as domains, despite the high price of .xxx.
Also, if a registry were to reserve the brand names of, say, the Fortune 1000, it would wind up blocking many dictionary or otherwise multi-purpose strings, which is obviously not usually the case with personal names.
ICM Registry has finally taken the wraps off its rapid domain name takedown service, which promises to make life difficult for cybersquatters in the .xxx top-level domain.
The Rapid Evaluation Service, as it is known, is basically a souped-up version of the familiar UDRP that tilts the overall balance in favor of legit trademark holders.
It’s designed for companies or individuals who don’t want to be associated with .xxx domain names, and has the remedies to match.
Using RES, brand owners will be able to get a domain temporarily suspended in less than a week, and later have it switched off for good.
That’s right, if a name is lost under RES it goes into registry-reserved status. The complainant does not get control of the domain, and they don’t have to pay recurring renewal fees.
But it will not be cheap. The National Arbitration Forum is the only organization authorized to handle RES work, and it’s charging $1,300 per domain, with no discounts for multiple-domain cases.
RES does not replace UDRP, but it is based on it.
Like UDRP, its three pillars are the domain’s confusing similarity with the complainant’s trademark, the rights and legitimate interests of the registrant, and the question of bad faith registration.
While much of the RES has been copied straight from the UDRP, there are key differences.
ICM has codified some of the good case law that has emerged from the last decade of UDRP and eschewed some of the bad, arguably making RES less open to interpretation.
Notably, unless you’re filing to protect a personal name — celebrities, porn stars or just the average Jo(e) — RES is for nationally registered, in-use trademarks only. Other marks don’t seem to count.
Typos are explicitly included in the definition of confusing similarity (no microsfot.xxx), as are brand+keyword domains (microsoftporn.xxx).
Phonetic similarity also makes an appearance, which seems like it could open a great big can of worms.
The bad faith component of RES is very similar to UDRP, but with the addition of a typosquatting ban and the removal of the requirement to show the registration was made for “commercial gain”.
As far as registrants are concerned, there are some additional protections you won’t find in UDRP, notably this text, which seems to specifically make many generic terms immune:
(iii) the domain name in the .XXX TLD has a primary meaning apart from its secondary meaning as a trademark or service mark associated with the complainant, and is being used in connection with its primary meaning in association with which the complainant has not acquired distinctiveness in the adult-entertainment industry.
Technically, and very hypothetically, I interpret this to mean that if you registered apple.xxx (which you won’t) and used it to publish videos of men recreating that scene from American Pie, you probably couldn’t lose the domain to an RES complaint.
I expect this is largely of concern to companies that have registered trademarks that correspond to dictionary words. They may have to use UDRP as usual.
RES has previously been billed as a 48-hour solution, but in reality cases could take anywhere between three and five days before a Preliminary Decision is handed down.
After a complaint is filed, there’s a one-business-day turnaround for an administrative check, then another two business days for the panelist to decide what to do.
If a respondent has lost three or more RES cases in a year, the panelist will be entitled to presumptively consider them an “abusive registrant” for a preliminary decision.
Preliminary decisions can stop a domain resolving immediately, if the panelist thinks the complainant is likely to win and that there’s no “substantial likelihood of harm” to the registrant.
Registrants then have 10 days to respond before a final decision is made. If they default, maybe because they’re on vacation, they have up to three months to appeal.
In short, we’re looking at the bastard son of UDRP here.
I suspect the trademark lobby is going to quietly love it. If that’s the case, it might help the domain industry look a bit more respectable.
If you’re more likely to be a respondent than a complainant, you’d be well-advised to familiarize yourself with RES (and ICM’s other policies) before investing in gray-area .xxx domains.
The huge glaring problem with the policy as far as I’m concerned is that neither ICM or NAF is going to publish any of its decisions in full, only aggregated statistics.
This is ostensibly to protect the identities of the complainants, but it’s also going to cover up (probably inevitable) sloppy decision-making, which won’t be good for confidence in the .xxx TLD.
But if somebody cybersquats your mom, you’ll probably be glad of it.
The Free Speech Coalition is trying to rally its supporters into a legal nastygram campaign against ICM Registry ahead of the launch of .xxx next month.
The California-based porn trade group wants webmasters to inform ICM that if it sells their trademarks as .xxx domains, they may sue.
It’s released a template letter (pdf) for members to use. It reads, in part:
ICM is now on notice that the registration of any domain name using the .XXX extension that is identical or confusingly similar to one of the trademarks or domains listed on Exhibit A will violate (COMPANY NAME)’s intellectual property rights and constitute an unfair business practice. ICM must take steps to prevent such activity before it can occur. Failure to take affirmative steps to prevent this conduct will establish ICM’s substantial liability.
The FSC believes that because .xxx is squarely aimed at porn webmasters, it smells like a shakedown a lot more than a more generic-sounding string would.
Its tactics are interesting – encouraging others to issue legal threats instead of doing it itself.
As I’ve previously noted, top-level domain registries based in the US have a pretty good legal defense against cybersquatting suits under the Anticybersquatting Consumer Protection Act.
Whether those defenses extend to claims of trademark infringement is a different matter. As far as I know, a sponsored gTLD manager has never been sued on these grounds.
The .xxx gTLD is of course one of the most cybersquatting-unfriendly namespaces ever, in terms of the number and strength of its trademark protection mechanisms.