Frager Factor

Monday, March 25, 2019

Flashback 2011: Mainstream Declares War on Domainers: .XXX Seen as Extortion and a "Porn Tax" For Non-Adult Businesses

How'd you do with XXX 8 years later?

Lots of news piled up over the weekend. Politics (covered in next post) and especially domains which seem to be making mainstream news more with reporters going to all the domain blogs to get their information. It's time for the industry to pay attention to what it publishes and what is not helpful to be widely known at this point in time.

Karl Jackson commenting on The Domains write: "The .XXX stuff will be primarily purchased for the defensive ownership of respective brands. Yeap you’ll see around 80% of purchases for that reason alone. Brian Wick added: "The beauty of .xxx is that virtually every .com (TM or generic) will buy .xxx – mostly for defensive purposes – like maybe 90% – but who cares why – that is a really really lot of money"

And there lies the problem where mainstream thinks its being extorted into having to maintain endless extensions just so that addicted domain gamblers can use names as sport. They are fed up and not going to take it any more.

In PC World, which calls this need to protest trademarks a "Porn tax" to mainstream they write, "Most businesses preregistering .XXX domain names are not in the adult porn industry, but want to make sure no porn businesses use their name."

Elequa sent me a piece about 400 companies, representing in excess of 10,000 brands that collectively spend over $250 billion in marketing, communications and advertising each year – the ANA- who argues that implementation of the ICANN program is economically unsupportable and is likely to cause irreparable harm and damage to its membership and the Internet business community in general.  At the same time, according to the ANA, the program contravenes the legal rights of brand owners and jeopardizes the safety of consumers.

They continue: "By introducing confusion into the marketplace and increasing the likelihood of cybersquatting and other malicious conduct, the ICANN top-level domain program diminishes the power of trademarks to serve as strong, accurate and reliable symbols of source and quality in the marketplace," says Bob Liodice, President and CEO, ANA.  "Brand confusion, dilution and other abuses also pose risks of cyber predator harms, consumer privacy violations, identity theft and cyber security breaches.  The decision to go forward with the program also violates sound public policy and contravenes ICANN's Code of Conduct and its undertakings with the United States Department of Commerce."

In another of a series of articles that have made it up to the Wall Streer Journal: "Will .xxx domain exploit names of companies?' argues "Often associated with porn, the letters “xxx” wouldn’t seem right next to Disney, as in Disney.xxx. Until now, Internet addresses generally have ended with .com, .net or .org. Approved in March, the newest web suffix — .xxx — may result in companies lining up to protect themselves. And Disney, Microsoft and Fox may feel they need to pay to keep .xxx, and the pornography associated with it, away from their valuable brands."

"That’s because there is a small window in which a company like Fox can buy up the rights to Fox.xxx. After that, someone else could buy that domain name and fill it with porn in an attempt to benefit from Fox’s trademark."

"The idea behind the new Internet domain is to establish an online red-light district. It’s the same concept as the shady part of town where it’s easy for someone to find strip clubs or pornography if they want it or avoid it if they don’t, only for the Internet."

The Toronto Star in yet another of the articles which puts all eyes on the domain world, "omain name disputes emerged as one of the first Internet legal issues in the mid-1990s as speculators recognized the value of domain names and the potential to resell them to the highest bidder. The growth of “cybersquatting” led to several unsuccessful attempts to establish a dispute resolution system. The CDRP initially included an exhaustive list of bad faith characteristics including registering a domain name with the intent to sell it to the trademark holder or registering multiple domain names that correspond to trademarks (a practice known as warehousing domains).

The exhaustive list was intended to guard against the ICANN experience where dispute panellists ventured well beyond clear cases of cybersquatting by creating their own categories of bad faith. Under the new CIRA policy, the bad faith list is now non-exhaustive, opening the door to more domain name dispute claims and increasing the risk of inconsistent decisions."

The American Banker argues, "New Domain Names Pose Opportunity and Challenge to Banks. But two issues that stand in the way. One that's been articulated by the American Bankers Association is the concern that whatever entity ends up controlling the .bank domain could either charge high fees to financial institutions wishing to protect their intellectual property or fail to securely operate such domains, damaging consumer confidence in the Internet channel. ABA and the Financial Services Roundtable are exploring whether to apply to become a registrar for ".bank."

"The other is that some banks will have a hard time taking advantage of their new domain-name liberty because of their klunky names, according to nomenclature specialist Naseem Javed, founder of New York-based ABC Namebank. "Of all the industries, our research shows that American bank names don't fit the proposed model of the gTLD because their name structures would disqualify them. If your name is Bank of Galveston or Bank of New York, it will not work with .bank. You cannot say .bankofgalveston. If you say BOG, it becomes .bog; that doesn't carry any place. The same goes for Bank of Commonwealth, Bank One, and Bank United." An egregious example he cites is The First Imperial Bank Depository of Commerce of the Commonwealth Dominion. More than 22 U.S. banks have names that begin with First, such as First American, First Capital, First Citizens, according to Javed. "American bank names are caught up in last century," he says. "We're living in the 21st century, with global interactions and online banking."

The new policy does, however, provide greater protection for registrants of generic domain names. These include generic words that may correspond to a trademark, but are widely used for many other purposes. Registrants will no longer be required to marshal evidence they have used the generic domain in order to claim a legitimate interest.





























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