'.xxx' to adopt the URS

International

ICM Registry LLC, the registry operator which runs the adult entertainment-oriented generic top-level domains (gTLDs) ‘.xxx’, ‘.adult’, ‘.porn’ and ‘.sex’, has renegotiated its ‘.xxx’ registry agreement with the Internet Corporation for Assigned Names and Numbers (ICANN). The major changes to the agreement include a reduction in the domain name transaction fees and the inclusion of some of the Rights Protection Mechanisms (RPMs) from the New gTLD Registry Agreement, such as the Uniform Rapid Suspension System (URS) to sit alongside the Uniform Domain Name Dispute Resolution Policy (UDRP). These proposals were subject to an ICANN public comment period which closed on November 24 2016.

The URS is one of the mandatory Rights Protection Mechanisms that all new gTLD Registries must adhere to. The URS is intended to be a faster and cheaper way of dealing with cases of clearly infringing domain name registrations. Unlike the UDRP, the URS does not offer the transfer of the domain name to the complainant as a remedy. Instead, should the complaint be successful under the URS, the domain name will be suspended by the registry until it expires. Therefore a complainant seeking to recuperate a domain name may wish to bring a complaint under the UDRP. However, the key to the URS is speed – it is designed to assist trademark holders in getting a domain name and any associated content taken down as quickly as possible and at a lower cost than the UDRP.

The introduction of the URS under legacy gTLDs has already proven to be controversial. ICANN came in for criticism last year when the three legacy gTLDs ‘.pro’, ‘.travel’ and ‘.cat’ agreed to implement the URS as part of the renewal of their Registry Agreements. There were claims that ICANN had forced the registries to introduce the URS as part of the contractual negotiations. ICANN denied this and insisted that the three registries had voluntarily agreed to include the URS.

The introduction of the URS to ‘.xxx’ has the potential to upset some in the domain name community as yet another legacy gTLD adopts this additional RPM. However, at the time of writing no party has yet commented on these proposals. It is therefore possible that the introduction of the URS is no longer seen as problematic. Indeed, as reported in Anchovy News this month, Telnic, the Registry Operator for ‘.tel’, has also agreed with ICANN to implement the URS as part of its Registry Agreement renewal negotiations.

The other main change in the ‘.xxx’ registry agreement is the reduction in the transaction fee owed by ICM Registry to ICANN. When the registry agreement was first signed, ICANN imposed a $2 transaction fee per domain name – a much higher fee than that of $0.25 for new gTLDs. This was justified by ICANN to “account for anticipated risks and compliance activities” that ICANN envisaged could arise due to the adult entertainment themed ‘.xxx’ gTLD and the subsequent controversy when it was approved as a gTLD. However, as these risks failed to materialise, ICANN’s position now is that “the .XXX gTLD no longer carries risk, for either ICANN or the Internet stakeholders initially concerned with the launch of .XXX”. As a result, ICANN has agreed to reduce the transaction fee to $0.25. Although the financial impact on domain name registrants will be small, the impact on ICM Registry will be significant.

Under the proposed amended registry agreement, ‘.xxx’ will broadly follow the same contractual and operation provisions as the other TLDs operated by ICM Registry (‘.adult’, ‘.porn’ and ‘.sex’), which are signed up to the New gTLD Registry Agreement. The proposed amendments can be found here.

David Taylor and Laetitia Arrault, Hogan Lovells, Paris

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