XXX Domains: Prevention is Better than the Cure

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Brand owners should be wary of the launch of the new .XXX top-level domain, scheduled for implementation in December 2011. While Internet Corporation for Assigned Names and Numbers (ICANN) intended the new .XXX domain to host adult entertainment websites, there is growing concern that trademark owners may face the threat of unscrupulous individuals using the registered trademarks of others at a .XXX domain site. Although the implication of waking up one day to discover a website with YOUR_BRAND.XXX is frightening, trademark owners have the opportunity to block their marks from use with a .XXX domain if they take appropriate preventive action now.

ICM Registry, LLC (ICM), the host of the .XXX domain, will launch a 52-day “blocking” period beginning on September 7, 2011, for trademark owners to register their existing trademarks and thereby block these marks from being used in conjunction with a .XXX domain. The trademark owner will not become an owner of a .XXX domain under this system. The so-called Sunrise B opt-out period will be available to owners of federally or foreign registered trademarks that are registered as of September 1, 2011. Under the provisions of Sunrise B, state registrations, common law marks, and business names are not eligible for registration. Additionally, Sunrise B will only allow trademark owners to block their exact trademarks but not similar marks.

The procedure to block a .XXX domain under Sunrise B requires an applicant to complete an application and provide trademark registration details. A one-time fee of $250 to $300 will be required to obtain a registration block that will last for 10 years. The exact procedures and details for Sunrise B applications are not available at this time, but applications under Sunrise B will be handled by ICM (http://www.icmregistry.com/). An applicant that successfully “blocks” its trademark from being used with a .XXX domain will not then own a .XXX domain. Rather, the domain will be removed from the pool of available .XXX domains, and a WHOIS lookup will result in a notice that the domain name is not available for registration.

Sunrise A, which will run concurrently with Sunrise B, will permit adult entertainment site owners to register their .XXX domains. To qualify, a site owner must either own an active registered trademark or own a domain in another top-level domain (TLD). If both Sunrise A and Sunrise B applicants seek the same domain name, priority will be given to Sunrise A applicants.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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