RESENDING: MarkMonitor's concerns regarding the intellectual property impacts associated with the .XXX Application and Agreement

["Margie Milam" <Margie.Milam@xxxxxxxxxxxxxxx>]

As a company focused on protecting the intellectual property rights of
major brands worldwide and as a concerned member of the internet
community, 1) we have serious concerns about whether there is truly
demand for the .xxx, and 2) the costs and potential abuse of the .xxx
extension. 

 

To be clear, MarkMonitor's concerns are not related to the morality of
the .xxx as we have absolute respect for First Amendment rights.  

 

First, ICANN should confirm that there is a demonstrated market need or
demand for the proposed .xxx TLD, as evidenced by industry trade
organizations and affected communities.  If no such support is readily
ascertainable, the application should be denied or delayed.  MarkMonitor
has yet to see this demand from any of our customers or partners.

 

Second, given the significant risk of harm resulting from an
unauthorized association of an individual, organization or a brand with
pornography via the .xxx extension, we believe that the ICANN process
and ICM agreement should include extraordinary intellectual property
protection.

 

In order to address the second issue, we would like  ICANN and the ICM
registry to recognize that brand holders as well as many other
individuals and organizations view the launch of .xxx as an unfair means
of extracting fees for defensive registrations and STOP proceedings.
The trademark related provisions should be modified to include measures
to remediate the increased costs arising from misuse by unscrupulous
.xxx registrants.  For example, losing registrants in a UDRP type
proceeding could be required to pay the trademark holder's legal fees in
addition to losing the domain name.  Such fees could serve as a
deterrent to unscrupulous registrants. 

 

The potential damage is not limited to brand holders. We can envision
any number of abuses that could affect individuals, small businesses and
non-profit organizations adversely.  These entities are especially
ill-equipped to resolve these potential issues economically or
organizationally. 

 

As we represent a large number of brand holders, we urge ICANN and ICM
to consult with intellectual property community before finalizing the
.xxx agreement to ensure that appropriate brand related protections are
adopted to minimize the potential damage to major brands throughout the
world.  And, as members in good standing of the internet community we
ask ICANN to think of all those whose reputations and pocket books may
suffer from other abuse of this proposed TLD.

 

Respectfully submitted,

 

Margie Milam

General Counsel

MarkMonitor, Inc.