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Want Beyonce.xxx? JustinBieber.xxx? Forget it

Kevin Murphy, August 22, 2011, Domain Registries

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.

As far as I can tell, no corporate trademarks have been given the same rights in .xxx as, say, David Cameron or Barack Obama.

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 reveals tough .xxx cybersquatting rules

Kevin Murphy, August 18, 2011, Domain Policy

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.

American Pie 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.

FSC steps up anti-.xxx campaign

Kevin Murphy, August 16, 2011, Domain Registries

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.

IFFOR names .xxx porn council members

Kevin Murphy, August 15, 2011, Domain Registries

The five porn industry members of the body which will set the rules for .xxx domains have been named by the International Foundation For Online Responsibility.

IFFOR is the policy shop set up by ICM Registry to oversee the new top-level domain. It will be funded to the tune of $10 a year from every .xxx domain registration.

The newly announced members of its Policy Council are:

Jerry Barnett, managing director of Strictly Broadband, a UK-based video-on-demand provider.

Florian Sitta, head of the legal department of the large German porn retailer Beate Uhse.

Trieu Hoang, based in Asia, counsel for AbbyWinters.com.

Chad Bellville, a US-based lawyer who advertises UDRP services.

Andy Kayton, general counsel for WebPower, which runs iFriends (a pornographic webcam service) and ClickCash, a large affiliate network.

Both Americans are members of the First Amendment Lawyers Association, according to IFFOR.

It will be interesting to see what the adult industry makes of this. Usually when a porn company throws in with ICM Registry and .xxx there’s a bit of a backlash on webmaster forums.

That said, I doubt these names will come as much of a surprise. Some if not all of the companies these people represent have already engaged in the .xxx Founders Program.

IFFOR’s non-porn Policy Council members were named in June.

Go Daddy confirms .xxx pricing, will host porn sites

Kevin Murphy, August 15, 2011, Domain Registrars

Go Daddy has revealed its pricing scheme for .xxx domain names and confirmed that it will indeed host the porn sites that use them.

When .xxx goes into general availability in December, Go Daddy will charge $100 per name per year.

That’s surprisingly high – a $40 markup on the $60 ICM Registry fee – for a registrar generally known for its reasonable prices.

I know of at least two registrars planning to sell .xxx more cheaply – the UK’s DomainMonster ($75 if bought in bulk) and Spain’s DinaHosting ($67). There may be others I haven’t come across yet.

Sunrise period pricing at Go Daddy is $210 for applications from the adult entertainment industry and $200 for trademark holders from outside the industry. Landrush prices will be $200 too.

Those fees represent some of the better deals I’ve seen for .xxx’s pre-launch phases.

The prices have not yet been published on the Go Daddy web site, but a company spokesperson confirmed that some of its larger customers have been privately notified.

That apparently includes Mike Berkens, who broke the news last week.

Go Daddy also confirmed that it will host .xxx porn sites, though only on its paid-for hosting accounts.

I’ve always been a little confused by Go Daddy’s hosting terms of service. By my reading, porn was outright banned. Apparently I was dead wrong.

The company’s general counsel, Christine Jones, said in a statement:

Go Daddy’s Web hosting agreement does not currently prohibit pornography, except in the case of ad-supported hosting. Those terms will continue for all TLDs, including .xxx, unless otherwise prohibited by our agreements with the various registry operators.

I know I’m not the only person out there who was confused by the ToS, but I can’t think of a better person to clarify the situation than the company’s top lawyer.