YouPorn challenges new gTLDs with review demand

YouPorn operator Manwin is demanding a review of .xxx, and ICANN’s top-level domains program by association, in a new Independent Review Panel request.
It becomes only the second company ever, after .xxx manager ICM Registry, to file an IRP request with ICANN. The filing came at the same time as Manwin sued ICANN and ICM in California.
The IRP demand ostensibly focuses on .xxx, but it also suggests that the forthcoming new gTLD program has many of the same flaws as the process that led to .xxx’s approval.
IRP is the final, and most expensive, appeals process available within ICANN for companies that believe they’ve been wronged by the organization’s decisions.
It was first used by ICM in 2008-2009 to have the rejection of its .xxx application overturned.
To win an IRP, complainants have to convince an International Centre for Dispute Resolution panel (probably three retired judges) that ICANN violated its own bylaws when it made a harmful decision.
The only reason .xxx is in the root today is that an IRP decided by majority that ICANN broke the bylaws when it approved and then rejected the .xxx bid filed in the 2004 new gTLD round.
Manwin’s IRP claims that ICANN failed to “adequately address issues including competition, consumer protection, malicious abuse and rights protection prior to approving the .xxx TLD”.
It also claims that ICANN failed to enforce ICM’s compliance with its registry contract, allowing it to engage in “anticompetitive conduct” and help violate IP rights.
The company is basically miffed that it felt it was being forced to spend money in ICM’s sunrise period, and that it was not allowed to block its trademarks and variations of its trademarks.
One of its oddest claims, which is in the IRP as well as the lawsuit, is that ICM was selected in a “closed process” that did not consider alternative .xxx operators.
The 2004 gTLD round was of course open to any applicant, so there was nothing stopping anybody else from applying for .xxx. One gTLD, .tel, did in fact have multiple bidders.
Essentially, the IRP demand cuts to the heart of the domain name industry and the new gTLD concept in general, challenging many practices that have become norms.
Sunrise
Sunrise is “extortion”, according to Manwin.
As well as being opposed to the idea of paying for defensive registrations in general, Manwin also thinks that typos and brand+keyword domains should be eligible for blocking, presumably for free.
It also believes that porn companies should have been able to defensively block some .xxx domains (which ICM called “Sunrise B”) and register others for active use (“Sunrise A”).
Speculation
Manwin’s IRP says that ICM did not act in the best interests of its sponsored community (ostensibly the porn industry) when it sold premium .xxx domains to “known domain name speculators”.
Well-known domainers Frank Schilling and Mike Berkens have invested millions in .xxx, but Manwin says their profit motives show ICM broke its commitment to serve the adult industry only.
Schilling, who signed up to buy domains 33 domains including amateur.xxx before ICM’s registry contract had even been approved, is reportedly already leasing out some of his .xxx names to porn companies for five figures a month.
New gTLDs
Manwin seems to support what you might call a ‘string first, registry later’ model for delegating gTLDs.
It states in its lawsuit and IRP that ICANN should have opened up .xxx for competitive bidding, apparently ignoring the fact that the .xxx string was proposed by ICM, not ICANN.
In the IRP demand, it suggests that allowing gTLD applicants to select their own strings is in violation of ICANN’s bylaws. The complaint states:

[ICANN] gave ICM a permanent monopoly over the .XXX TLD without considering other candidates for registry operator and without making provision for considering other potential registry operators at the end of the initial term of the .xxx Registry Agreement.

If Manwin wins, ICANN could be forced into a situation where it must ask for string proposals from new gTLD applicants and then open up each proposed string to competitive bidding.
That’s not necessarily a bad idea, but it’s pretty much exactly the opposite of how the ICANN-approved new gTLD program is going to work.
The IRP and the lawsuit are also notable in that they target the alleged lack of economic studies that support .xxx and new gTLDs in general.
It states that ICANN “failed to conduct proper economic studies of the impact of the introduction of new TLDs, including the .xxx TLD”.
This is a frequent criticism leveled at ICANN by opponents such as the Association of National Advertisers and the newly formed Coalition for Responsible Internet Domain Oversight.
Manwin is being represented in the suit and IRP by the law firm Mitchell Silberberg & Knupp, the employer of Steve Metalitz, a well-known figure in ICANN’s intellectual property constituency.

YouPorn sues ICANN and ICM over .xxx

One of the biggest porn companies in the world has filed an antitrust lawsuit against ICANN and ICM Registry over the introduction of the .xxx top-level domain.
Luxembourg-based Manwin Licensing and California-based Digital Playground allege “monopolistic conduct, price gouging, and anti-competitive and unfair practices”.
Manwin runs YouPorn, Brazzers and, under license, several Playboy-branded web sites, while Digital Playground is among the largest porn production companies in the world.
Together they are demanding an injunction on .xxx altogether, for ICANN to be forced to impose price constraints on ICM, and to open up the .xxx contract for competitive rebidding.
The complaint, apparently filed in California today, essentially alleges that everything ICM has done to date, from its application with ICANN to its sunrise period policies, is wrong and bad.
It claims ICM’s sunrise period amounted to extortion and that ICANN willfully created a monopoly by agreeing to a registry contract with presumptive renewal but no price caps.
ICM, the complaint says, reacted to the approval of .xxx earlier this year “with the anti-competitive behavior expected of a monopolist”.

It has, for example, improperly exploited the newly created market for .XXX defensive registrations by making such registrations unreasonably expensive and difficult, and by placing onerous burdens on parties seeking to protect their intellectual property rights.

Manwin claims that the recently ended sunrise period, which saw over 80,000 defensive registrations, was priced too high given that ICM handed out free domain blocks to thousands of celebrities.
It also claims that ICM should have enabled companies to defensively block typos of their trademarks, and that porn companies without trademarks should have been able to block their brands.
It takes ICANN to task for not operating a competitive bidding process for .xxx, and claims ICM used “misleading predatory conduct and aggressive litigation tactics” to push through its approval.
I’m not a lawyer, but often antitrust cases swing on the way the court decides to define the relevant “market”.
Manwin claims .xxx is the market, whereas it could be argued that because porn sites are free to use .com or almost any other TLD, that the domain industry as a whole is the market.
The complaint states:

The market for blocking services or defensive registrations in the .XXX TLD is a distinct and separate market in part because there is no reasonable substitute for such registrations. For example, blocking or preventing others’ use of names in a non-.XXX TLD is not such a substitute. Blocking use of a name in a non-.XXX TLD does not prevent use of the name in the .XXX TLD.
…
ICM has a complete monopoly in the market for the sale of .XXX TLD blocking or defensive registration services through registrars.

I’m not sure if my legal thinking holds water, but this sounds rather like arguing that BMW has a monopoly on making BMWs or Coca-Cola has a monopoly on Cherry Coke.
But Manwin says that .xxx is the only porn gTLD and ICANN has basically ruled out the creation of any future porn-centric TLDs with clauses in ICM’s registry contract.
It also notes that .sex and .porn would be unlikely to be approved in the next round of new gTLDs due to the restrictions on controversial strings imposed by the Governmental Advisory Committee.
ICM president Stuart Lawley said in a statement:

The claims are baseless and without merit and will be defended vigorously. They also show an apparent lack of understanding of the ICANN process and the rigorous battle we went through with ICANN over eight years in full public scrutiny to gain approval.

The .xxx story really is the gift that keeps on giving.

Gaddafi ousted from Libya’s Whois

Libya has changed the Whois records for the .ly top-level domain to remove references to the usurped Gaddafi regime.
While ownership of .ly has not changed in the IANA records — it’s still delegated to the national General Post and Telecommunication Company — the name of the country has.
Until late last month, it was “Libyan Arab Jamahiriya”, a reference to the unique political philosophy of Colonel Muammar Gaddafi, who took over the country in 1977.
It’s now just “Libya”.
The change was made October 27, just seven days after Gaddafi was captured and killed by rebels in Sirte.
(Hat tip: @ianawhois)

Om Malik switches from .me to .co

High-profile Silicon Valley tech blogger Om Malik has switched from a .me domain name to a .co.
His personal blog, found at omis.me, is now redirecting to om.co. It’s a personal “rebranding”, according to a blog post this evening from .CO Internet CEO Juan Calle.
Calle was responding to reports today about Overstock.com’s decision to slow down its transition to the O.co brand, which is arguably .CO Internet’s biggest customer win to date.
Malik is best known as the founder of GigaOm, a professional tech news/analysis blog. If it’s any gauge of his influence, he has almost 1.3 million Twitter followers.
GigaOm is sticking with its .com.

One in five .рф domains have web sites

The .рф registry celebrated its first launch anniversary last week, with almost one million .рф names registered and apparently almost one in five domains with an active web site.
According to RU-Center, which says it is the registrar of record for 40% of .рф (.rf) names, about 18% of the Cyrillic domains registered in the last year resolve to full web sites.
The registrar said in a press release:

18% of names have website, 16% do redirect, 4% are on parking, 15% are just delegated but not available, and 15% have a plug webpage. 29% of .RF names are unused.

That compares to the 18.7% use penetration of .info, which has been around for over a decade, assuming RU-Center and Afilias compiled their numbers using a similar methodology.
RU-Center also said that 94% of .рф sunrise registrations have been renewed. The rate of landrush registration renewals, which give an indication of what speculators think of the space, will not be clear until December, it said.
It is apparently now also possible for non-Russians to obtain .рф domains.

Overstock.com slows down O.co rebranding

Overstock.com is throttling its transition to the O.co brand after discovering consumers typed o.com even after watching the company’s commercials, according to a report.
The company’s $350,000 purchase of and subsequent rebranding around the o.co domain was possibly the single biggest single marketing coup for .CO Internet, the .co registry, to date.
But now it intends to keep the Overstock.com brand in the US for the time being, while using O.co overseas and on a new iPad app, according to a report in AdAge.
The O.co Coliseum, the stadium in Oakland for which Overstock bought the naming rights, will continue to bear the O.co name.
AdAge quoted Overstock president Jonathon Johnson saying that “a good portion” of people viewing its commercials tried to visit o.com, which is a non-resolving registry-reserved name, instead.
“We were going too fast and people were confused, which told us we didn’t do a good job,” he told AdAge. “We’re still focused on getting to O.co, just at a slower pace… We’re not flipping back, we’re just refocusing.”
This is obviously bad news for commercial new top-level domain applicants, many of which will be looking for all-important anchor tenants to validate their brands at launch.
Marketing people like to refer to the measurable results of others before pulling the trigger on new initiatives. The O.co case is unlikely to create enthusiasm for new TLDs.
On the other hand, it’s commonly believed that when it comes to breaking the .com mindset in the US, it will take more than a trickle of new TLDs such as .co. It will take a flood.
.CO Internet has always taken the position that .co adoption will take time, and that the ICANN new gTLD program will help its cause by raising awareness of non-.com domains.

Lawley quits as .xxx sponsor chairman

ICM Registry president Stuart Lawley has stepped down as chairman of IFFOR, the sponsoring organization for .xxx, after ongoing criticism over potential conflicts of interest.
He will be replaced by Clyde Beattie, a former chair of .ca manager CIRA, who was already on IFFOR’s governing board of directors.
IFFOR, the International Foundation For Online Responsibility, was set up by ICM to act as the “sponsoring organization” required by ICANN’s 2004 new gTLD process.
The organization is supposed to be independent, consisting of a policy-creation committee overseen by a three-person board of directors.
However, it has come in for frequent criticism from the porn industry, notably the Free Speech Coalition, over the perception that it is basically an ICM puppet.
While the Policy Council has five out of nine members drawn from the porn industry, the FSC has often accused Lawley of having a “veto” on IFFOR’s decisions, which he has denied.
“Even though the bylaws ensured separation, the optics weren’t ideal,” said Lawley.
However, while Beattie takes over his role, Lawley’s empty seat on the IFFOR board will be filled by ICM general counsel Sheri Falco.
ICM still has a vote, in other words, but not the chair.
The third board member is Sebastien Bachollet, CEO of BBS Consulting. Bachollet also sits on ICANN’s board of directors as a representative of At-Large community.

.xxx faces big test as landrush kicks off

The landrush phase for ICM Registry’s .xxx domain is scheduled to begin today, following the oversubscribed sunrise period that closed last week.
Given the inherently defensive nature of sunrise periods – most of the almost 80,000 applications were for non-resolving domains – landrush is the first big test of public demand for working .xxx names.
I expect healthy interest from domainers, despite the relatively high price of landrush registrations.
High-profile investors including Frank Schilling and Mike Berkens have already invested seven figures in .xxx via its Founders Program, which may set the tone for the rest of the community.
The landrush period runs until November 25. Contested domains will go to auction in December. General availability is currently scheduled to begin December 7.
Domain Name Wire has compiled a handy guide to the best-priced landrush registrars.

Afilias to apply for Chinese .info

Afilias has announced that it plans to apply for the traditional and simplified Chinese script equivalents of .info under ICANN’s new generic top-level domains program.
The company becomes the last of the Big Three registries to give a glimpse into its new gTLD strategy.
VeriSign has said it wants transliterations of .com in multiple scripts, while Neustar has said it plans to apply for its own dot-brand, .neustar.
Afilias did not disclose the exact strings it wants in its announcement. There was no mention of .mobi, which the company also runs.
According to the last official count, there are close to 7.9 million registered .info domains. Marketing director Roland LaPlante said in September that about 19% host unique web sites.

Over 7,500 .uk cybersquatting cases heard

Nominet is celebrating the 10-year anniversary of its Dispute Resolution Service this week, saying that it has settled over 7,500 cybersquatting cases.
Based on a £15,000 estimated cost of legal action, the .uk registry reckons DRS has saved companies about £110 million ($176 million) over the last decade.
DRS has similarities but differences to UDRP. Notably, DRS has a formal mediation phase and an appeals process for registrants who believe their domains were wrongly taken from them.
The .uk zone currently has fewer than 10 million registrations, compared to the 135 million gTLD domains to which the UDRP applies.
WIPO and the National Arbitration Forum have settled about 35,000 UDRP complaints over the last decade. With that in mind, cybersquatting enforcement in .uk appears to have been relatively heavy.