IV. ICM's Proposed Registration Process for the .xxx Domain

Despite the limitations of the federal cybersquatting laws and the UDRP, the proposed registration process for the .xxx domain should protect most mainstream businesses and individuals from cyberpiracy.72 ICM relies on “four principle mechanisms: contractual representations, charter verification, the UDRP, and the Start-Up Trademark Opposition Proceeding (“STOP”).”73 While no registration process can be completely foolproof, the steps outlined by ICM integrate all of the screen processes which have been effective in the past, offering potential victims of cyberpiracy more protection than ever before.

Currently, all people who register a domain name must sign a release that states that they have no reason to believe that they are infringing on anyone's personal mark, that they do not know of any person or business with an interest in the mark, and that they are acting in good faith by registering the domain name.74 After that step is complete, the domain name information is entered into a whois database, which contains information on all domain names within a TLD.75 As one of its efforts to protect the rights of others, ICM proposes requiring a release to be signed at registration and again when the domain name is registered is with a whois.76

ICM also intends to utilize “charter compliance” to prevent cyberpiracy. As ICM intends the .xxx domain to be a virtual “red light district”77 , the charter insists that every website in the .xxx domain must contain adult content, and ICM has outlined a specific screening process for making sure this requirement is met.78 ICM asserts that because the domain will contain only sexual content, consumers will recognize the .xxx tag and not confuse the domain names with mainstream businesses.79 Nonetheless, ICM has recognized that some individuals and businesses will still be concerned about the risk of any association with the .xxx domain. Thus, ICM will offer a “sunrise” period before registration for the TLD opens to the adult entertainment industry.80 This means that the interested parties can protect their names and trademarks before registration becomes open to the general public.

Another step protecting trademark holders from cyberpiracy is the implementation of a STOP proceeding.81 STOP is basically a proceeding that halts an abusive registration of a trademark while the registration is still taking place.82 Essentially, it provides a timely mechanism that ensures that no damage is done to the trademark.83 STOP proceedings were used with success by Neulevel during the initial registrations of .BIZ,84 and ICM believes they can improve on that by slightly extending time period for a STOP proceeding.85

For disputes that do not occur during the registration process, ICM will utilize the UDRP.86 As discussed above in Part III, subsection C, the UDRP can be an inadequate barrier against cyberpiracy and an ineffective means of settling domain disputes. How this will play out in the adult entertainment context will be discussed later in this comment.

Finally, ICM hopes to prevent cyberpiracy by making registration with the domain considerably more expensive.87 While a price increase in per-domain-name registration may prevent mass registrations of domain names, it seems unlikely that a price hike will prevent an opportunistic cyberpirate from taking advantage of an unclaimed name.88 Other registration procedures, including the sunrise period for trademark holders and requirement of charter compliance, will probably be more effective at preventing cyberpiracy than a modest price increase.