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Is 80% of .xxx going to be defensive?

Kevin Murphy, August 4, 2011, Domain Registries

Is the new adults-only top-level domain going to turn out to be just as big of a trademark shakedown as some had feared?

EasySpace, a British domain name registrar, claims that 80% of its .xxx pre-orders are from organizations outside the porn industry.

“Out of the hundreds of businesses that have rushed to pre-register with Easyspace ahead of the opening of the Sunrise phase for .XXX domains on 7 September 2011, only 20% of them are from the adult industry,” the company said in a press release.

EasySpace is just one rather small registrar, of course, and its marketing of .xxx is very much in the “Protect your brand” camp, so its numbers may not necessarily hold up industry-wide.

The company is charging $189.99 ($310) for non-porn defensive registrations, an almost 100% markup on the registry fee.

Still, 80% is a big number, and likely to be used by critics not only of .xxx but of new TLDs in general.

ICM gives away .xxx domains to porn stars (video)

It seems that pretty much every time I’ve written about .xxx over the last five or six years the article has been mentioned, or focussed on, how the porn business hates it.

For a change, here’s a shameless propaganda video (possibly NSFW) that ICM Registry produced during a recent, evidently quite boozy, party at Platinum Lace, a strip joint in London.

Context: ICM was sponsoring the party.

The people heard supporting .xxx are either porn actresses who’ve just been given their .xxx domains, employees of the Paul Raymond stable of top-shelf men’s magazines, or domain registrars.

One of the interviewers is “Mario”, a Z-lister known for being annoying on the TV show Big Brother last year. I figured his 15 minutes were already up, but I guess not.

The other is ICM’s sales director Vaughn Liley. He’s the one who starts interviews with the question “So, do you think .xxx will be good for the industry, or great?”

Watch out, David Frost.

Also seen posing, though not speaking, is Ben Dover, pretty much the only mainstream-famous porn video producer ever to come out of the UK.

CNN asks: Will .xxx domains cost $185,000?

If you’ve ever doubted what a rarefied world we work in, check out this new CNN interview with ICM Registry, which confusingly conflates .xxx with ICANN’s new top-level domains program.

Anchor Pauline Chiou uses the approval of new gTLD program as a segue into a brief interview with ICM president Stuart Lawley about the forthcoming .xxx sunrise period.

“If they want to apply for this one-time block do they have to pay this $185,000?” she asks

She goes on to press Lawley into launching a defense of ICANN’s program that I doubt he was expecting.

You’ll notice that Chiou also refers to ICANN as the “Internet Corporation for Assigned Names” and flatteringly describes it as “the group that oversees the development of the internet”.

For a casual viewer, it would be fairly easy to come away from this interview assuming Lawley works for ICANN, and that .xxx domains could cost $185,000.

ICM reveals .xxx launch dates, extends sunrise

Citing demand, ICM Registry has lengthened the .xxx sunrise period, which begins September 8, by three weeks. It will now end October 28, running for 50 days.

The new deadlines apply to all three sunrises, which will run concurrently.

Sunrise A-T – for porn publishers with trademarks.

Sunrise A-D – for porn publishers with matching domains in other TLDs.

Sunrise B – for anyone outside the porn business who wants to “turn off” their trademark in .xxx to prevent cybersquatting.

Successful Sunrise B applicants will see their chosen domains resolve to a standard information page explaining that the domain is not available for registration.

Post-launch, anyone can register a non-resolving domain that returns an NXDOMAIN response, but they’ll have to pay for it annually. Sunrise B applicants pay a one-time fee.

If applicants from Sunrise A and Sunrise B both apply for the same domains, the porn applicant will be given precedence, although they will be warned about possible trademark infringement.

If more than one Sunrise A applicant applies for the same domain, the fight will be taken to an auction, managed by Pool.com. Auction rules will be published at a later date.

The sunsrise is outlined in a policy document (pdf) ICM published on its web site today that sets out the rules for its pre-launch period.

The company has not yet announced details of its Charter Eligibility Dispute Resolution Procedure, nor its Rapid Evaluation Service, though it has said it expects them to cost between $750 and $1,500, depending on what deals it can come to with dispute resolution providers.

The Rapid Evaluation Service, previously referred to as “rapid takedown” will be an interesting one.

It’s expected to be a little like the Uniform Rapid Suspension process ICANN’s new gTLDs will have to implement, except it will only take about 48 hours to take down an obviously cybersquatted domain.

ICM says it expects to publish these policies before the sunrise begins.

Landrush is now expected to run November 8 until November 25. General availability will begin December 6.

Will Larry Flynt sue over .xxx domains?

The porn publisher Hustler is “prepared to take whatever legal action may be necessary” to stop ICM Registry letting people register its trademarks in .xxx, according to a report.

I’ve been hearing rumors for several weeks that some companies are so unhappy about having to pay to block their brands in .xxx that they may consider legal action.

Now Xbiz reports that Hustler has said it refuses to be “shaken down” by the registry, but that ICM has not responded to its written demands for protection.

But will the company sue ICM (and ICANN?) over what may amount to just a few thousand dollars in defensive registration fees? And on what grounds?

In the US, the Anticybersquatting Consumer Protection Act, which has been on the books since 1999, is rather friendly to registries unless they behave really, really badly.

ICM will have some of the strongest trademark protection mechanisms of any gTLD, suggesting that it could have quite a strong defense to a cybersquatting claim.

Hustler could of course decide to sue based on a different law.

Threats of lawsuits are something that new gTLD applicants will need to bear in mind if they plan to apply for a TLD that encompasses an industry or community, as .xxx does.

Even if applicants manage to win the support of a portion of the affected industry, community members that think they’re likely to be cybersquatted or lose valuable real estate may well resort to the courts.

This is why about 30% of every new gTLD application fee goes into an ICANN war chest reserved in part for legal fees. ICANN knows what could be coming down the pike.

Xbiz quoted Hustler attorney Jonathan Brown saying: “We are constantly policing the registration and use of domain names that attempt to capitalize on Hustler’s trademarks.”

But the record shows that the company does not appear to be an especially aggressive enforcer of its marks in other top-level domains.

The magazine’s parent, LFP, has filed 29 UDRP complaints since 2002, all relating to Hustler and Barely Legal and, apart from hustler.tv, all for .com domains. The most recent filing was in 2009.

The company does not own the string “hustler” in .net, .org, .info, .biz or in a number of high-visibility ccTLDs that I checked. It does, however, own hustler.mobi.