Intellectual Property: Is .XXX good for your brand? ... or Bullshit!
By Diane Duke, Free Speech Coalition Executive Director
At the 2010 ICANN conference in Cartagena, Columbia—some six years after first advancing its .XXX sTLD proposal—ICM finally outlined its proposal on Intellectual Property for .XXX domains. The proposal was distributed at a meeting that FSC Board Chair Jeffrey Douglas and I attended. ICM’s Stuart Lawley also was at that meeting, as was a representative of Valideus, Ltd., the entity chosen by ICM to implement what it calls its “sunrise” rights protection mechanism.
Under their plan, holders of trademarks for already existing second-level domain names are afforded certain priorities and other rights. According to the proposal, “The key innovation from ICM will be the opportunity extended to rights owners from outside the adult industry to reserve and therefore block names at the .XXX registry so that they cannot be used as conventional web addresses.”
Thus, some but by no means all trademark holders will be permitted to block all use of their second-level domain names within the .XXX TLD space. At the Cartagena meeting, the speaker, in answer to a specific question, said that adult entertainment producers would not be afforded the blocking rights formulated for “rights owners outside the adult industry.” Lawley did not contradict or amend that answer in any way. This limitation on innovative blocking right reveals ICM’s ultimate purpose, which is to coerce all members of the “adult industry” into paying for trademarked second-level domain names they already own and use, under threat of losing them to others who will put them to use in the .XXX space.
Following the Cartagena meeting, FSC brought extensive attention to bear on the fact that adult businesses, which do not support .XXX—and by definition are not the “sponsored” community—were being treated differently than their mainstream counterparts. After FSC publicly raised these issues, however, ICM communicated to FSC that the policy had been misstated in Cartagena. According to ICM’s website, the policy now says:
Sunrise B is for rights owners from outside the sponsored community. Names secured through Sunrise B will not result in the registration of a conventional, resolving domain name at the .xxx registry. Instead, these names will be reserved and blocked from live use. The applied for string will resolve to a standard plain page indicating only that the string is reserved from use through ICM’s rights protection program. It is important to note that members of the Adult Entertainment Industry who do not support .xxx or wish to ever register any names in .xxx will be able to use Sunrise B to apply to block their trademarks. Please note however that any names that have been blocked cannot be unblocked and converted into resolving names without being made generally available. Any entity, applying for blocks under Sunrise B as a non-member of the Sponsored Community cannot apply for names in Sunrise A, C, Landrush or General Availability.
Not so fast. What does this really mean to adult businesses?
If you are among the minority number of adult companies that have trademarked a specific brand, you can block it (at an estimated minimum cost of $125 per domain, and likely much more). But, you cannot block variations of the name. For example, if Barely Legal is trademarked, BarelyLegal.com can be “blocked from live use,” but BarelyLegalGirls.com cannot, unless Barely Legal Girls is specifically trademarked. Moreover, if you want to block BarelyLegal.com from live use and defensively register BarelyLegalGirls.com, you cannot do so. You’re screwed.
Also, if you want to block your trademarked domains from live use, and at some time in the future change your mind, sorry, you're screwed again. Your domain will be tossed onto the open market. Sure, there are legal paths you could take, but at what expense to you and your business?
FSC is extremely concerned about how much it will cost established adult entertainment businesses to protect their trademarked brand names and internet traffic should the .XXX sTLD be approved. The adult industry has been hit hard by the worldwide recession, and many companies presently lack any excess capital to throw away, especially at $60 per, just to protect up to thousands of .XXX versions of their second-level domain names.
But wait! ICM is also trying to convince us that .XXX will, in fact, enhance your brand. In his post of July 8, 2010, Stuart Lawley stated that ICM, “WILL be embarking on a multi-million dollar media campaign” to promote the benefits of .XXX.
He went on to say, “We will also likely sponsor sporting events, conferences, etc., to make sure that the .XXX brand is fully known prior to the launch and that the general public is fully aware of what .XXX represents.” Sponsoring sporting events? Who is he kidding? The NFL is NOT going to allow .XXX anywhere near its teams. What about baseball…soccer? These events are for family viewing and I can promise you they will go nowhere near .XXX. But let’s not be too hard on Mr. Lawley. After all, he is not part of the adult industry and knows NOTHING about it!
ICM is trying to convince us that .XXX will enhance adult brands and traffic? But we know better. We say…Bullshit!
Part four of this five-part series will be posted to AVN.com tomorrow.