Guest blogger Matthew David Brozik
We all knew this day would come, even if not everyone wanted it to: The sponsored top-level domain .xxx is up and running, although addresses in the new sTLD aren’t quite up for grabs. After approval by ICANN in March, sponsor ICM Registry is, as of September 7, accepting (via GoDaddy, natch, among other registrars) applications for .xxx domain names. ICM has established a staggered system for assigning .xxx domain names to applicants, thus:
From September 7 through October 28, two kinds of applicants will be serviced: “Sunrise A” applicants are those with a trademark in the adult entertainment services realm (or, otherwise, a registered non-.xxx domain name used for adult entertainment services—a circumstance that leads to the unfortunately termed “grandfathering” of that domain name); “Sunrise B” applicants are those with a trademark for non-adult-oriented products or services who do not want those marks used as .xxx domain names. Take PepsiCo Inc., for example. (Most people use Coca-Cola as the go-to exemplar, but I’ve long been partial to Pepsi.) PepsiCo Inc., if it wants to make sure that no one else registers “pepsi.xxx,” can pay $199.99 for the first year (slightly less than the $209.99 charged to successful Sunrise A applicants) to obtain that domain name (and then, one expects, have it redirect to pepsi.com or simply let it lie fallow).
Well, how convenient!
The thinking here, evidently, is that the legitimate holder of a trademark for adult-oriented services has top priority for the .xxx domain name that incorporates that mark. Absent such entity, the right of first refusal to register a .xxx domain name is given to the holder of that mark for use in providing non-adult goods and/or services. If both do exist (and apply for the .xxx domain name), ICM will give the domain name to the Sunrise A applicant. (Multiple Sunrise A applications will be resolved by private auction.)
From November 8-25, during the so-called “Landrush” phase, applicants “who don’t qualify for Sunrise A but want to secure a valued .XXX domain name and avoid first come, first served General Availability risks” may apply. Landrush phase applicants need possess no special qualifications (other than being recognized members of the “adult Sponsored Community,” that is). Finally, starting December 6, whatever .xxx domain names are left will be offered to the adult Sponsored Community at large.
But let’s go back a bit, to the part where those who own trademarks used in connection with non-pornographic goods and services can pay to register .xxx domain names, presumably specifically so that no one else will snap up those domain names and perhaps sully the marks. Doesn’t the law already provide these trademark owners a mechanism for preventing such a thing? Why, I believe it does! On the other hand, however, there can be little if any argument that it isn’t worth $199.99/year (and possibly less for each year after the first) to a trademark owner to register the .xxx domain name and thereby safeguard its mark. Two hundred dollars is nothing compared to the cost of litigation. But even a cease and desist letter alone would likely cost more than two hundred dollars (if prepared by counsel, that is). So we’re almost certainly not going to see lawsuits over the likes of pepsi.xxx, kleenex.xxx, or xerox.xxx.
Now, where’s this .law I’ve been hearing absolutely nothing about?