The Coalition Against Domain Name Abuse has asked ICANN to make one-time trademark blocks, much like those offered by .xxx operator ICM Registry, mandatory in most new top-level domains.
In a letter to ICANN bosses (pdf) sent last week, CADNA president Josh Bourne wrote:
ICANN should consider including a requirement in the Applicant Guidebook that all new gTLD registries that choose to sell second-level domains to registrants adopt a low-cost, one-time block for trademark owners to protect their marks in perpetuity.
ICANN should require registries to give brand owners the option to buy low-cost blocks on their trademarks before any registration period (Sunrise or Landrush) opens. This can be offered at a lower cost than sunrise registrations have been priced at in the past – this precedent has been set with the blocks offered in .XXX, where the blocks are made in perpetuity for a single, nonrecurring fee.
The recommendation is one of several. CADNA also reckons ICANN needs to name the date for its second round of new gTLD applications, and that “.brand” applicants should get discounts for multiple gTLD applications.
The letter comes as opposition to the new gTLD program in the US becomes deafening and ICANN’s board of directors have reportedly scheduled an impromptu meeting next week to determine whether the January 12 launch is still a good idea.
CADNA is no longer opposed to the program itself. Fairwinds Partners, the company that runs the lobbyist, recently restyled itself as a new gTLD consultancy.
But there’s a virtually zero chance the letter will come to anything, unless ICANN were to decide to open up the Applicant Guidebook for public comments again.
I also doubt the call for a mandatory ICM-style “block” service would be well-received by anyone other than ICANN’s intellectual property constituency.
The problem with such systems is that trademarks do not grant exclusive rights to strings, despite what some organizations would like to think.
It’s quite possible for ABC the taxi company to live alongside ABC television in the trademark world. Is it a good idea to allow the TV station to perpetually block abc.taxi from registration?
Some would say yes. The Better Business Bureau and Meetup.com, to name two examples, both recently went before Congress to bemoan the fact that they could not block bbb.xxx and meetup.xxx – both of which have meaning in the adult entertainment context and were reserved as premium names – using ICM’s Sunrise B.
With that all said, there’s nothing stopping new gTLD applicants from voluntarily offering .xxx-style blocking services, or indeed any form of novel IP rights protection mechanisms.
Some applicants may have even looked at the recent .xxx sunrise with envious eyes – with something like 80,000 defensive registrations at about $160 a pop, ICM made over $12 million in revenue and profit well into seven figures.
ICM Registry has suspended several dozen .xxx domain names registered by cybersquatters.
It’s believed to be unprecedented for a mainstream registry to unilaterally shut down domains purely on the grounds of alleged cybersquatting, as I reported for The Register earlier today.
ICM took down 70 to 80 domains including washingtonpost.xxx, cnbc.xxx and verizonwireless.xxx because it decided that the domains infringed trademarks and were therefore abusive.
Many belonged to the squatter Domain Name Wire first fingered as the registrant of huffingtonpost.xxx, named in Whois as Justin Crews.
Crews had told MSNBC that he planned to sell the domains at profit.
There was no UDRP arbitration, no court order, just a breach of the .xxx registry-registrant agreement, which gives ICM the right to suspend squatted domains at will.
This is the relevant part of the agreement, which all .xxx registrants must agree to:
You acknowledge and agree that the Registry reserves the right to disqualify you or your agents from making or maintaining any Registrations or Reservations in the .XXX TLD if you are found to have repeatedly engaged in abusive registrations, in its sole discretion.
I blogged back in May about why it might not be necessary to spend a fortune on defensive registrations in .xxx, given the existence of this policy and others.
Nevertheless, while it may take a while for the implications to become clear, I think the suspensions represent a very significant development.
Coming so soon after the end of ICM’s sunrise period, which saw many organizations spend thousands on useless non-resolving defensive registrations, I wouldn’t be surprised if many companies feel like they may have wasted their money.
If you’ve just spent $200 defending your brand, I imagine it would be quite annoying to see the likes of verizonwireless.xxx or businessweek.xxx get the same protection for free.
I would also not be surprised if, from now on, trademark attorneys trying to defend their rights in .xxx first contacted ICM, rather than WIPO or the National Arbitration Forum.
Why spend thousands on a UDRP complaint when you can just send a legal nastygram to ICM?
ICM president Stuart Lawley told DI today that this wave of suspensions was done independently, not in response to any legal demands.
Still, the precedent has been set: ICM will suspend domains for free, under certain circumstances.
What those circumstances are is less clear.
Lawley said that ICM will not get involved in complaints about individual domains – but it will shut down cybersquatters with multiple infringements.
But what constitutes cybersquatting? UDRP has a definition, but I’m not sure ICM does. It may be quite subjective.
It’s also not clear what ICM will do with the suspended domains, not all of which necessarily infringe trademarks. Some may be bona fide, but the ICM policy is to take down the registrant’s entire portfolio.
So will those non-infringing domains be released back into the pool? And if so, how will ICM determine which are squats and which are not?
And what about the ones that are squats? Will they be released?
AOL may be content for huffingtonpost.xxx to remain suspended forever. As long as it’s suspended, the company does not have to worry about defensive registration fees.
But consider gayroom.xxx, which was also suspended.
The owner of gayroom.com owns a trademark on the word “gayroom”. Gayroom.com is a porn site, but one that has chosen not to buy its equivalent .xxx domain.
What if it changes its mind? If gayroom.com wants gayroom.xxx in future, is there a way to take it out of suspension, or is the company stuck without its .xxx forever, just because a cybersquatter got there first?
ICM’s policies do not seem to answer this question and the company has not yet revealed its plans for the suspended domains.
As a post-script, I should note that Huffington Post owner AOL is currently listed as the registrant of huffingtonpost.xxx in the Whois record.
It’s not yet clear why this is the case, but Lawley stated unequivocally today that the apparent transfer is completely unrelated to ICM’s own crackdown.
Did the cybersquatter transfer the domain to AOL before the suspension? Did he sell it to AOL? Or did he just update the Whois with phoney data? Either seems possible at this point.
The weekend box office numbers are in, and .xxx didn’t put as many bums on seats as might have been expected.
ICM Registry sold 55,367 new .xxx domain names in its first 24 hours of general availability, giving it a total of almost 159,351 registrations, according to the company.
That’s pretty good going for a TLD which, despite the spin in ICM’s recent TV commercials, is intended for a limited customer base, and which is selling for $80 to $100 a year.
Given its $60 registry fee, ICM will have taken over $3.3 million in revenue yesterday, over $550,000 of which will be given to its sponsoring organization, IFFOR.
However, the 159,351 total includes non-resolving domains, ICM has confirmed.
Due to the unique trademark protection mechanisms put in place for non-porn companies, it’s possible to pay for a .xxx domain that will only ever resolve to a standard registry placeholder.
ICM has previously said that it took almost 80,000 sunrise applications, and that the landrush phase put its total “comfortably over 100,000″.
It did not, however, break out the mix of Sunrise A (resolving) and Sunrise B (non-resolving) domains.
That’s an important distinction, both for ICM’s ongoing revenue and for gauging demand for .xxx among registrants.
Each Sunrise B domain gave ICM a $161 windfall but, unlike every other TLD launched to date, has the sale had no recurring revenue component.
I think it’s possible that 50,000 to 60,000 sunrise domains were non-resolvers, which would give .xxx a total of roughly 100,000 active domains under management after one day of GA.
(My assumptions are that all 80,000 sunrise applications were unique and approved, and that roughly two thirds were for Sunrise B non-resolving domains).
Assuming all the active domains are renewed, it’s a $6 million a year business (or $5 million, if you exclude the mandatory IFFOR donation) for ICM already.
The .xxx zone is already bigger than .travel, .pro, .jobs, .aero, .coop, .museum and .cat. It will likely be bigger than .name, .tel and .asia by the end of the month.
So why suggest that it’s a disappointing result?
First, for a few years ICM was accepting no-cost .xxx “pre-reservations” through its web site, while its gTLD application was in ICANN limbo.
It racked up over 900,000 such reservations for roughly 650,000 unique .xxx domain names before shutting the offer down in July this year.
One might expect that most people interested enough in .xxx to pre-register a domain months or years in advance might also be interested in grabbing that domain during landrush, sunrise or at the moment of GA. That apparently didn’t happen.
Let’s also compare .xxx to the launch of .co by .CO Internet last year.
While .CO did not have anything like the long-term media exposure as .xxx, it did of course have the advantage of offering a completely generic string priced at a third of .xxx.
Within its first 24 hours of general availability, .CO said that it had 233,000 domains under management, about 39,000 of which were landrush or sunrise registrations.
Even at the cheaper registry fee (about $20 a year) .CO still made more money in day one than ICM (although ICM wins hands-down in terms of premium domain sales).
.CO, incidentally, also only had 10 accredited registrars at launch (not counting resellers) compared to ICM’s over 70.
Go Daddy is responsible for roughly half of all new .com registrations, with similar numbers in other TLDs including .co, but it does not appear to be promoting .xxx very heavily.
For the last few days, its homepage has contained only one small below-the-fold reference to .xxx domains. Its TLD drop-down menu has .xxx in tenth place, between .biz and .ca.
Conversely, ICM has been promoting Go Daddy (and DomainMonster) more heavily in its own marketing – notably on gavin.xxx, the site “owned” by its TV commercial character.
So is .xxx on track to meet expectations at this early stage?
ICM CEO Stuart Lawley has previously predicted 300,000 to 500,000 registrations in the first few months, and that’s still an achievable goal given its day-one performance.
.CO Internet, for example, more than doubled its 233,000 first-day take within two months of going into general availability.
The new Russian ccTLD .рф registered 200,000 domains in its first six hours when it launched in November 2010, and hit 800,000 by April this year.
While .xxx clearly hasn’t yet smashed estimates in the same way as its sunrise did, I think early indications are that it’s looking pretty healthy.
Today blah blah ICM Registry blah blah .xxx blah live blah.
Blah blah 10 years blah blah porn blah blah generally available blah. Blah delay blah 5pm blah Lawley blah.
ICANN blah blah Governmental Advisory Committee blah blah blah San Francisco blah blah blah.
Blah blah Free Speech Coalition blah blah controversy blah Manwin blah blah blah lawsuit blah antitrust blah blah blah leg to stand on.
Blah speculators blah domainers blah cybersquatters blah. Blah blah shirt off your back blah.
Blah blah contract blah blah policies blah blah UDRP blah toothless blah blah blah WIPO blah blah blah donkey porn.
Blah reporting blah damned blah story blah 10 years blah blah bored blah blah blah blah finally over.
The International Foundation For Online Responsibility, the policy oversight group for .xxx domains, says it wants to help fight piracy, child abuse material and internet censorship.
Those are the three priorities to emerge from IFFOR’s inaugural two-day meeting last month, according to the organization. It has set up three working groups to look at the issues.
On filtering, a pretty hot topic given the various pieces of copyright-related legislation currently under consideration in the US and elsewhere, IFFOR said:
The filtering working group will review the state of global filtering laws, regulations and plans with a view to educating legislators and others about the advantages and effectiveness of user-defined filtering as opposed to mandated filtering or blocking at the ISP or router-level.
While there’s yet to be a proven case of an entire nation blocking .xxx domains, some countries have said they are considering it and I’ve heard several anecdotal cases of companies blocking the TLD.
IFFOR also said wants to find a way to help combat piracy “that can work across the entire dot-xxx registry” and is looking at both technical and legal measures.
The child abuse imagery working group, headed by veteran cyber-cop Sharon Girling, plans to work with existing third-party organizations on reporting and policy-making.
All three goals are self-evidently noble. Whether IFFOR will be able to make a noticeable impact on any will of course depend on what policies its working groups come up with.
IFFOR’s Policy Council comprises nine members: five from the porn industry, a free speech advocate, a child protection advocate, a security expert and an ICM Registry representative.