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.
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 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.
ICM Registry made just shy of $4 million from its Founders Program, which allocated premium .xxx domain names to porn webmasters.
As Elliot’s Blog reported, uber-domainer Frank Schilling’s Name Administration has picked up 33 .xxx domains for a seven-figure sum.
Schilling got his hands on the likes of amateur.xxx, asian.xxx, hardcore.xxx, hot.xxx, porno.xxx and many other “super premiums” domains.
He said in a statement provided by ICM:
I believe that .XXX, unlike many other new TLDs, offers SLD registrants the opportunity for long term type-in traffic. Many people navigate in a way that suggests they believe .XXX existed all along. Few strings other than .XXX share this attribute.
ICM president Stuart Lawley said that .xxx was a popular type-in TLD long before it even existed on the internet. Apparently the non-existent .web is also pretty good for traffic.
While on the face of it selling these super-premiums to a domainer may look like ICM shirking its duties to its sponsored community, Schilling like all .xxx Founders has committed to develop web sites at all of his .xxx names – the domains are not for flipping.
ICM says it has allocated some 1,500 domains to 35 registrants under the Founders Program.
Beate-Uhse, Germany’s biggest adult retailer, has picked up kostenlos.xxx (“free”) among others.
Channel 1 Releasing, a Californian gay porn publisher, has grabbed several domains related to its niche, such as muscle.xxx and jock.xxx.
I understand one UK company has also decided to rebrand its entire stable around the .xxx extension.
While many domains sold for six figures, not all Founders paid big bucks – many got their names for the standard registration fee in exchange for their development commitments.
It’s late 2012. You’ve spent your $185,000, fought your way through objections, won your contention set, and proved to ICANN that you’re technically and financially capable of running a new generic top-level domain.
The registry contracts have been signed. But will your gTLD actually work?
The experiences of .xxx manager ICM Registry lately suggest that a certain amount of outreach will be needed before new gTLDs receive universal support in applications.
I’ve encountered three examples over the last few days of .xxx domain names not functioning as expected in certain apps. I expect there will be many more.
Skype. Type http://casting.com into a chat window and Skype will automatically make the link clickable. Do the same for the .xxx equivalent, and it does not.
Android, the Google mobile platform. I haven’t tested this, but according to Francesco Cetaro on Twitter, unless you manually type the http:// the domain doesn’t resolve.
TweetDeck, now owned by Twitter. It doesn’t auto-link or auto-shorten .xxx domains either, not even if you include the http:// prefix.
This problem is well known from previous new gTLD rounds. ICANN even warns applicants about it in the Applicant Guidebook, stating:
All applicants should be aware that approval of an application and entry into a registry agreement with ICANN do not guarantee that a new gTLD will immediately function throughout the Internet. Past experience indicates that network operators may not immediately fully support new top-level domains, even when these domains have been delegated in the DNS root zone, since third-party software modification may be required and may not happen immediately.
Similarly, software applications sometimes attempt to validate domain names and may not recognize new or unknown top-level domains.
As a 10-year .info registrant, I can confirm that some web sites will still sometimes reject email addresses at .info domains.
Sometimes this is due to outdated validation scripts assuming no TLD is longer than three characters. Sometimes, it’s because the webmaster sees so much spam from .info he bans the whole TLD.
This is far less of an issue that it was five or six years ago, due in part to Afilias’s outreach, but just this week I found myself unable to sign up at a certain phpBB forum using my .info address.
I understand ICM has also been reaching out to affected app developers recently to make them aware that .xxx now exists in the root and has resolvable domains.
ICANN also has released code in C#, Java, Perl, and Python (though not, annoyingly, PHP) that it says can be easily dropped into source in order to validate TLDs against the live root.
The last beta was released in 2007. I’m not sure whether it’s still under development.
(UPDATE: CentralNic CTO Gavin Brown has knocked up a PHP implementation here.)