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ICM and YouPorn in antitrust settlement talks

Kevin Murphy, February 14, 2012, Domain Registries

It’s Valentine’s Day, so perhaps it’s appropriate that ICM Registry has just revealed that it’s in talks to settle the .xxx antitrust lawsuit filed by one of the world’s biggest porn networks.

ICM and Manwin Licensing may soon resolve the case, which Manwin filed in November over the “extortion” it saw in the launch of the .xxx top-level domain, according to court documents.

In a joint filing, Manwin and ICM, along with ICANN and Digital Playground – the fellow plaintiff that Manwin has since acquired – said:

in recent days, Plaintiffs and ICM have engaged in discussions aimed at resolving the disputes that are the subject of this litigation.

The parties believe that additional time would potentially allow the parties to resolve all or some portion of their disputes.

The filing stipulates that Manwin has until this Friday to file an amended complaint and that ICANN and ICM should have 60 days after that to file their responses to the complaint.

That’s assuming that the suit isn’t completely settled in the meantime, of course.

The ICANN and ICM motions to dismiss filed in January have been taken off-calendar until Manwin amends its complaint.

I understand that ICANN also has secured a 60-day extension to its deadline to respond to the separate Manwin Independent Review Panel proceeding.

Manwin, which runs Brazzers, YouPorn and the Playboy-branded web sites, claimed in its complaint that the approval of .xxx in the absence of a competitive tender and its subsequent launch policies and pricing violated US antitrust laws.

ICANN and ICM claimed in their responses last month that the company was just scared of a little competition.

First .xxx cybersquatting complaint filed by porn site

Kevin Murphy, February 12, 2012, Domain Policy

The new .xxx top-level domain has seen its first cybersquatting complaint filed by a porn site.

The registrant of the domain femjoy.xxx was hit by a UDRP complaint in with the World Intellectual Property Organization late last week.

FemJoy.com is a well-known “artistic nude” porn site, according to the adult industry trade press.

While there have already been 12 UDRP cases filed against .xxx registrants, the previous cases have all been filed by the owners, such as banks and retailers, of non-porn trademarks.

The femjoy.xxx case appears to be the first instance of a cybersquatting complaint filed by a porn site.

Complainant Georg Streit has owned a US trademark on “FemJoy” – covering “magazines and periodicals featuring photographs and images of landscapes and human bodies” – since 2007.

The registrant of femjoy.xxx is an Australian called Tu Nguyen, according to Whois records. The domain does not currently resolve. In fact, it doesn’t even have name servers.

A dozen .xxx sites hit by rapid takedown

Kevin Murphy, February 9, 2012, Domain Policy

The National Arbitration Forum has ordered the secret takedown of 12 .xxx domains since the adults-only gTLD launched in December.

NAF yesterday published statistics about the .xxx Rapid Evaluation Service, which ICM Registry created and NAF exclusively administers.

Fifteen RES complaints have been filed since December 6, 12 of which have been resolved so far. All of the cases were won by the complainant — a trademark holder in 11 of the cases.

The RES was designed to handle clear-cut cases of cybersquatting and impersonation. It costs $1,300 to file a complaint and offers a super-fast alternative to the UDRP.

The domains are suspended forever if the complainant is successful.

According to NAF, it’s currently taking on average two business days between the complaint being filed and the domain being suspended.

Because registrants have 10 days to respond – and half of them did – the final decision took an average of 12 business days.

Unlike UDRP, RES decisions are not published, so there’s no way of knowing whether they were fair.

ICANN: antitrust law does not apply to us

Kevin Murphy, January 21, 2012, Domain Registries

ICANN says it “does not engage in trade or commerce” and therefore US antitrust laws do not apply to its approval of the .xxx top-level domain, according to court documents.

The organization and .xxx operator ICM Registry yesterday submitted their coordinated responses to the antitrust lawsuit filed by YouPorn owner Manwin Licensing.

ICANN claims it cannot be held liable under antitrust law and ICM has accused Manwin of filing a nuisance lawsuit because it missed its opportunity to secure some premium .xxx domain names.

Manwin sued in November, alleging ICANN and ICM illegally colluded to deliver “monopolistic conduct, price gouging, and anti-competitive and unfair practices”.

The company, which runs the largest porn sites on the internet, claims ICANN should have opened the .xxx contract to competitive bidding and that ICM’s sunrise policies amounted to “extortion”.

It wants a California District Court to shut down .xxx entirely.

But ICANN has now argued that Manwin’s antitrust claims cannot possibly apply to it because it is a charitable, public-interest organization:

ICANN cannot, as a matter of law, be liable under the antitrust laws with respect to the conduct alleged in the Complaint because ICANN does not engage in “trade or commerce.”

[ICANN] does not sell Internet domain names, it does not register Internet domain names, and it certainly is not an Internet pornographer. ICANN does not make or sell anything, it does not participate in any market, and its Bylaws expressly forbid it from participating in any of the markets referenced in the Complaint.

Its motion to dismiss (pdf) goes on to say that the introduction of .xxx is actually pro-competition, and that Manwin only sued because it is scared of losing market share.

Plaintiffs claim to be upset with the manner in which ICM is operating the new .XXX registry, but since Plaintiffs already operate (by their own admission) some of the most successful pornographic websites on the Internet, websites that will continue to operate irrespective of anything ICM might do, what the Plaintiffs are really complaining of is the potential competition that their websites may face from the operation of .XXX.

ICM Registry makes similar arguments in its motion to dismiss (pdf):

what Plaintiffs are really complaining about is the fact that they lost the opportunity to purchase the least expensive defensive registry options offered by ICM because they missed the deadline

But ICM also says that the lawsuit falls foul California’s laws against so-called SLAPPs (“strategic lawsuits against public participation”), basically nuisance suits designed to suppress speech.

Declarations from CEO Stuart Lawley (pdf) and marketing director Greg Dumas (pdf) detail conversations between Manwin and ICM in the run-up to the gTLD’s approval and launch.

Manwin managing partner Fabian Thylmann offered to invest in ICM in July 2010, but Lawley declined, according to an ICM exhibit (pdf).

By October 2010 these offers had turned to legal threats, according to Dumas’ declaration:

Manwin saw the introduction of the .XXX sTLD as a threat to Manwin’s dominance over the adult Internet industry. At that time, Thylmann said that he would do whatever he could to stop .XXX. Specifically, Thylmann said that if ICANN approved the .XXX sTLD, Manwin would file a lawsuit against ICM to disrupt its ability to conduct business

Shortly after ICANN’s December 2010 meeting in Cartagena concluded with an ambiguous resolution on .xxx’s future, Thylmann rebuffed Dumas’ overtures about the .xxx Founders Program.

He predicted in an email to Dumas that ICANN’s Governmental Advisory Committee would force ICANN to reject .xxx, adding “the .xxx domain is useless even if it comes to market”, according to an ICM exhibit.

In September 2011, when the .xxx launch was already well underway, Manwin demanded thousands of free premium .xxx domains and a veto over some registry policies, according to Dumas:

Manwin demanded that ICM: allocate a minimum of several thousand .XXX domain names to Manwin free of charge; commit to prevent IFFOR from making any policies that ban or restrict the operation of user-generated content “tube” sites on .XXX domains; grant across-the-board discounts on all .XXX domain registrations; and allow Manwin to operate certain ‘premium’ or high value domain names, such as “tube.xxx,” through a revenue sharing arrangement between Manwin and ICM.

ICM says that these demands were accompanied by legal threats.

The lawsuit and Manwin’s boycott of companies using .xxx domains has harmed ICM’s business, according to the company’s court filings.

The case continues.

Fox takes control of squatted .xxx domain

Kevin Murphy, January 21, 2012, Domain Policy

Twentieth Century Fox has withdrawn its cybersquatting complaint about the domain name foxstudios.xxx after the domain was transferred into its control.

As I reported on Tuesday, the UDRP case was a no-brainer. Fox Studios is Fox’s production subsidiary, and the owner of foxstudios.xxx had offered the domain for sale on eBay for a ludicrous $1.9 million.

This would have been more than enough to show bad faith.

The Whois record for the domain shows it is now owned by Fox, with an email address corresponding to an outside law firm. From here, it still resolves to a for-sale page, however.

Three more .xxx UDRP complaints have been filed this week, all by Turkish companies, bringing the total since December 29 to eight.