Sunrise .xxx domains get 1.3 million hits a day

Domain names blocked by trademark holders during the .xxx sunrise period get 1.3 million hits per day, according to ICM Registry president Stuart Lawley.
The number refers to DNS queries arriving at the name servers ICM uses to serve up its standard blocking placeholder page.
I estimate that this works out to about 20 queries, on average, per domain per day.
The placeholder is displayed whenever a web user visits a domain that was registered during the Sunrise B launch phase last October.
A million DNS queries does not necessarily indicate a million page views, of course. Spiders and other automated processes likely account for some of the query traffic.
ICM does not monetize the pages, and because the names resolve to a standard placeholder ISPs don’t get to monetize the error traffic either.

ICM offers free .xxx domains to porn stars

ICM Registry and Name.com have teamed up to give a free one-year .xxx domain name registration to 3,500 selected porn stars.
It’s part of ICM’s Adult Performer Program, which saw these performers’ names initially reserved.
According to ICM, Name.com has pre-paid for the first year’s registration, valid until February 3 next year, but participating individuals will of course be free to move to another registrar if they choose.
That works out to $210,000 in registry fees, if I’m understanding the deal correctly, which seems like a bit of a risk given the general hostility to .xxx from the mainstream porn industry.
Name.com charges $84.99 for .xxx domains.
The Adult Performer Program came in for a bit of criticism last year, when some actresses tried to defensively register their names not realizing they had been reserved.

ICM and YouPorn in antitrust settlement talks

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.

ICANN: antitrust law does not apply to us

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

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.

YouPorn owner acquires fellow .xxx plaintiff

Manwin, the porn company currently suing ICANN and ICM Registry over the .xxx launch, has acquired co-plaintiff Digital Playground.
“To me this deal is no different than the acquisition of Pixar by Disney,” Digital Playground CEO Ali Joone said, according to Xbiz.
Terms of the deal were not disclosed.
While Digital Playground was named as a plaintiff on the .xxx lawsuit, Manwin was clearly the lead. Manwin has also launched a solo Independent Review Process arbitration case against ICANN.
The company is one of the biggest porn producers on the internet, owning YouPorn as well as managing Playboy’s web presence under license.
Manwin claims that ICM’s launch amounted to “extortion”, and that it gave away its lack of respect for the porn industry by selling premium names to domainers including Frank Schilling and Mike Berkens.
ICM’s response to the lawsuit is due later this week.

The first .xxx phishing site?

Those readers following @domainincite on Twitter may have noticed I spent a lot of time on Friday Googling for .xxx web sites, to get an idea how the new namespace is being used.
All in the name of research, of course.
As well as the expected video, dating and forum sites, I found one or two inexplicably safe-for-work oddities.
I also found what I believe may be the first .xxx site set up for phishing.
The domain name signin.xxx, registered to an individual in Ohio, looks extremely suspicious, especially when you consider the subdomains the registrant has created.
Here’s a screenshot of the URL www.hotmail.com.signin.xxx:

I have no evidence that the site has been used in a phishing attack, or that the registrant intends to use it in one. However, it seems pretty clear that he’s noticed the potential for abuse.
The page’s footer offers to sell the domain for a seven-figure sum.

CADNA calls for mandatory .xxx-style sunrises

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 opens can of worms with .xxx domain seizures

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.
Go Daddy, the registrar of record for the domain, declined to comment, citing its customer privacy policy.
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.

Notes from the Senate new gTLDs hearing

The US Senate’s Commerce Committee held a hearing into ICANN’s new generic top-level domain program today, following pressure from the Association of National Advertisers.
It must have been a busy day on Capitol Hill. Not only was the hearing delayed by 45 minutes, but when it did begin only four or five Senators showed up to speak.
Committee chair Sen. Jay Rockefeller put his head through the door just long enough to deliver a prepared statement, leaving Sen. Amy Klobuchar to lead the rest of the hearing.
It was a relatively subdued and hurried affair that heard for the most part some extremely well-worn arguments about the potential benefits and risks of new gTLDs.
Nevertheless, the hearing did generate a few headline moments. These are my first impressions.
Rockefeller in pro-gTLD shocker
Given that the hearing was called at the behest of ICANN’s critics, it was slightly surprising that the Committee’s chairman gave a generally pro-expansion statement.
Sen. Rockefeller said he was generally in favor of new gTLDs, believing them to be pro-competition and pro-innovation, but suggested that the roll-out should be slower and more cautious.
“I think we’ll have to get used to .hotel, I think we’ll have to get used to .auto,” he said.
“If ICANN is determined to move forward, it should do so slowly and cautiously,” he said. “The potential for fraud, consumer confusion, and cybersquatting is massive and argues for a phased in implementation. Scaling back the initial round of new top level domains introduced in 2013 may be a prudent approach.”
ICANN expects about 1,000 applications
Senior vice president Kurt Pritz gave the latest ICANN guesstimate about how many new gTLD applications it expects to receive in the first round.
That number is 500 to 1,000, maybe a little more but “not thousands”, he said, noting that the estimate was completely based on hearsay.
New ICANN conflict of interest rules
ICANN’s board of directors evidently voted to restrict their post-ICANN employment opportunities at the board meeting earlier today, if Pritz’s testimony is an accurate guide.
He said that directors will not be able to work for any new gTLD operator that they have voted to approve for 12 months after they leave ICANN.
Cheaper application fees for worthy applicants
Again scooping the publication of today’s ICANN board meeting resolutions, Pritz revealed that application fees are going to be reduced from $185,000 to $47,000 for needy applicants.
This suggests heavily that ICANN figured out a way to accommodate the recommendations of the Joint Applicant Support working group, which proposed a number of measures aimed at reducing the financial burden for applicants in developing nations.
There was no word from Pritz about which organizations or nations will be eligible for the reduction, however.
The ANA compares senators to Disney characters
At one point, the ANA’s Dan Jaffe wheeled out a slide bearing a picture of Donald Duck and Mickey Mouse, to illustrate the problem of inaccurate Whois information.
He was addressing Sen. Maria Cantwell and Sen. Kelly Ayotte, both of whom asked questions about fraud and both of whom use Whois privacy services on their official campaign web sites.
I found this immensely amusing.
Dyson speaks for the little guy (if he has a trademark)
Former ICANN chair Esther Dyson said in her opening testimony that she was the only person at the hearing there to represent public opinion, rather than that of big business.
She then went on to complain, with a straight face, about all the trademark enforcement headaches big business will have to deal with in a world of hundreds of new gTLDs.
She’s particularly miffed, as a director of a company called Meetup, that ICM Registry has reserved meetup.xxx as a premium domain name.
Meetup will probably sue whoever buys the name for trademark infringement, she indicated.
Way to stick it to The Man, Esther!
Wither IDNs?
Non-Latin-script gTLDs were not discussed in any depth during the hearing, meriting only one or two mentions.
That’s unusual, given that IDN gTLDs are the one benefit of the ICANN program that not even intellectual property interests have dared to argue against.
Next steps
The ANA and the YMCA want somebody to put a stop to the new gTLD program, or to at least delay it.
Dyson suggested that for the US to unilaterally intervene might be a bad idea, politically.
When asked whether the Department of Commerce would be able to stay ICANN’s hand, Commerce representative Fiona Alexander ducked the question.
With a handful of exceptions, nobody on the Senate committee seemed to care enough about the subject to show up and ask questions.
I think this probably counts as a win for the pro-expansion camp.
There is however another hearing, this time before the House Energy and Commerce Committee, next week. If recent history is any guide, we’re likely to be in for more of the same.