A UDRP has been filed on the grandfather of adult generic domain names, Porn.com with the World Intellectual Property Organization (WIPO)
The company filing the complaint, MXN Limited bought the domain name back in 2007 for more than $9.5 Million dollars.
The domain name Porn.com was registered at Moniker.com for a many years until just a week ago or so when it was transferred to the Regional Network Information Center, JSC dba RU-CENTER (.RU) under privacy.
We have not been able to confirm the nature of the UDRP and that its to recover a stolen domain but its the only thing that makes sense.
I know Moniker.com offers a Max Lock product on domain names, a second step authorization system meant to make it much harder to steal a domain but we have no idea of whether this domain was covered by the Max Lock or not but appears to be another huge black eye for Moniker.com a company that has seen more than its share of problems.
If this is a case of a stolen domain, its Certainly the most valuable domain since Sex.com to have be stolen, which led to years to lawsuits, but was taken under a completely different “paper” transfer system which existed years ago.
According to Alexa.org, Porn.com is the 854th most visited site on the Internet.
Here is the current whois record:
Domain Name: PORN.COM Registry Domain ID: 3279275_DOMAIN_COM-VRSN Registrar WHOIS Server: whois.nic.ru Registrar URL: http://www.nic.ru Creation Date: 1995-08-19T04:00:00Z Registrar Registration Expiration Date: 2020-01-07T20:00:00Z Registrar: Regional Network Information Center, JSC dba RU-CENTER Registrar IANA ID: 463 Registrar Abuse Contact Email: tld-abuse@nic.ru Registrar Abuse Contact Phone: +7.4959944601 Domain Status: clientTransferProhibited Registry Registrant ID: Registrant Name: Privacy protection service - whoisproxy.ru Registrant Organization: Privacy protection service - whoisproxy.ru Registrant Street: PO box 99, whoisproxy.ru Registrant City: Moscow Registrant State/Province: Moscow Registrant Postal Code: 123308 Registrant Country: RU Registrant Phone: +7.4957856536 Registrant Phone Ext: Registrant E-mail: porn.com@whoisproxy.ru Admin Name: Privacy protection service - whoisproxy.ru Admin Organization: Privacy protection service - whoisproxy.ru Admin Street: PO box 99, whoisproxy.ru Admin City: Moscow Admin State/Province: Moscow Admin Postal Code: 123308 Admin Country: RU Admin Phone: +7.4957856536 Admin E-mail: porn.com@whoisproxy.ru
Here is how the whois record back from a couple of weeks ago:
Domain Name: porn.com Registry Domain ID: 3279275_DOMAIN_COM-VRSN Registrar WHOIS Server: whois.moniker.com Registrar URL: http://www.moniker.com Updated Date: 2014-07-14T23:40:32.0Z Creation Date: 1995-08-19T04:00:00.0Z Registrar Registration Expiration Date: 2019-01-07T23:02:17.0Z Registrar: Moniker Online Services LLC Registrar IANA ID: 228 Registrar Abuse Contact Email: abuse@moniker.com Registrar Abuse Contact Phone: +1.9546071294 Domain Status: clientDeleteProhibited Registry Registrant ID: P-DCK1445 Registrant Name: David Koonar Registrant Organization: MXN Ltd. Registrant Street: LOWER BROAD STREET Registrant City: BRIDGETOWN Registrant State/Province: nu Registrant Postal Code: 0000 Registrant Country: BB Registrant Phone: +809.5199870600 Registrant Email: lakshmishankar.arunkumar@mail.com Registry Admin ID: P-DCK1445 Admin Name: David Koonar
As for the site itself it doesn’t seem as it has changed according to Screenshots.com
i wouldn’t doubt that this is some kind of fallout from the disastrous moniker “upgrade”.
UDRP doesn’t seem the optimal route to handle this dispute, if the domain name was indeed stolen. Seeking emergency relief via the courts would be a better choice, in my opinion.
One wonders if the complaint discloses their three failed attempts to register “porn.com” as a mark, or includes the record of their registered figurative mark which bears a disclaimer of “porn.com”.
The idea in these things is primarily that the registrant won’t show up and the panel will buy what they are selling on the trademark claim.
That sometimes works, and the panel will “look the other way” in order to right a wrong, but the UDRP is not an appropriate mechanism for this claim.
This is from the final refusal of one of their registration applications:
———
This letter is in response to applicant’s Request for Reconsideration of a Final Refusal, and its Amendment to Allege Use, both filed February 10, 2009. After careful consideration of applicant’s submissions, the Office maintains and continues its final refusal under Section 2(e)(1), for the reasons below.
TRADEMARK ACT SECTION 2(E)(1) REFUSAL TO REGISTER
Registration is refused because the proposed mark merely describes a feature of applicant’s services and the commercial nature of applicant’s enterprise. Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); TMEP §§1209 et seq.
Here, the proposed mark is merely descriptive because it consists of the wording “PORN”, which merely describes a feature of the services, combined with the top-level domain (TLD) “.COM.” Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); In re Gyulay, 820 F.2d 1216, 1217, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987).
I wonder if the domain owner’s email acct was compromised or was his Moniker acct?
I wonder why Moniker is not assisting in recovering the domain?
Godaddy was the favorite registrar for hijacking domains.
I wonder if Moniker has lost other domains to hijackers?
It is interesting how quickly the pendulum swings in the opposite direction.
It use to be that Moniker was considered the safest of all registrars
.
Maybe they are doing both.
A few UDRP panels have awarded back stolen domains, but they might have been better off filing with the Asia Center they seem to have returned more domains
I just checked PACER, and there were no recent cases filed by MXN in their system (although PACER doesn’t index every US court).
Actually, not a bad idea filing a UDRP. There are a number of UDRPs that deal with stolen domains. Regardless of John’s comment it would appear that there is a trademark and as John knows panels will not question the strength of the mark because they are presumed valid. The rest is fairly straight-forward regarding Legitimate interest and bad faith.
Having been involved in a number of highjacking situations, litigating is not always the best alternative. First it is very costly. Second, there is the issue of jurisdiction and the like. The issue is further complicated by the fact that whether or not domains are a form of property right remains an open question. The IN REM jurisdiction in the ED VA is fine but they do not recognize domains as property. Hence a litigant is stuck with only a ACPA claim and cannot add theft, etc. States like CA are great because you can also include a claim of theft and as Mr. Ricks found out, theft along the chain of possession prevents title from passing. Thus, CA protects the victim of the theft against the claim that there is an innocent purchaser. Other states vary considerably. You of course cannot simply file where you want. You need to establish personal jurisdiction over the defendant. I think Moniker does business in FL but its new RA provides for Oregon law. I have no idea what either FL or OR say as to the domains/property issue or the issue of civil theft and title. I know lots of great litigators in CA, VA an FL but none in OR but that is beside the point. Litigation is not a “for-profit” endeavor – it is expensive and time-consuming.
In litigation you must file the complaint and then request a TRO. Courts tend to be slow and some judges are reluctant to grant them exparte. This is a $15-25,000 process. And, even if successful you have at most locked the domain pending resolution of the litigation.
A UDRP on the other hand costs $1,500 and results in an automatic lock. A response is due in 20 days and panels tend to make an effort to do what they feel is the “right thing” when the claim fits (at least substantially) within the four corners of the Policy.
Overall, a fast economically efficient attempt. I hope it works for them.
Paul Keating
Paul
Having read through a bunch of these UDRP it seems to me that the newer UDRP provider the Asian Center has returned a high percentage of stolen domains, so why not file with them instead of WIPO which has been much more reluctant to return stolen domains, if that is the situation
“John knows panels will not question the strength of the mark because they are presumed valid.”
What mark are you talking about, Paul? I was quoting from a final refusal of an application.
In the issued figurative registration, the string “porn.com” is disclaimed in its entirety. No, panels do not confer a presumption to the disclaimed text. Quite the opposite.
Based on what I just read here, I have a hunch this may shed some light in the right direction:
“Russian hackers amass 1.2B stolen Web credentials”
http://www.computerworld.com/s/article/9250179/Russian_hackers_amass_1.2B_stolen_Web_credentials
Isn’t theft a law enforcement issue?
By that I mean the Police arrest the thief and the registrar gets directed to put the name back? Why is that not the solution? I realize they are in Russia but really guys… Why a UDRP?
Steve
I assume the owners are trying everything they can do get the domain back as soon as possible.
“The issue is further complicated by the fact that whether or not domains are a form of property right remains an open question. The IN REM jurisdiction in the ED VA is fine but they do not recognize domains as property. Hence a litigant is stuck with only a ACPA claim and cannot add theft, etc.”
This is a false dichotomy.
Making this into a trademark claim only hurts domain registrants who own generic words.
Saying, “but you can’t claim ‘theft’ if it is not property” is a result of unthinking lawyers who, for some reason, seem to believe there are only two species of legal claim in the world.
YOU DON’T HAVE TO PLEAD A HI-JACKED DOMAIN CASE AS A THEFT CLAIM.
You have a service contract with the registrar. Someone has deprived you of the benefit of that service contract. You can make a claim out of that without ever saying the word “theft” or without ever having to use the word “property”.
The only reason the stupid “are domains property” argument goes on is because lawyers lock themselves into a conversion claim when they file their case, and then they have to make that subsidiary argument as an element of their claim.
There are a variety of claims: impersonation, fraud, tortious interference with contractual relations, which have zip, zilch, nada, to do with “are domain names property”.
Let’s make this simple. I contract with a house painter to mow my lawn every week. The day the lawn mower shows up, some guy on the sidewalk says he is me, and directs the mower to go mow some other lawn, saying it is my lawn. Thenceforth, the mower shows up weekly and mows the wrong lawn.
Now, for some crazy reason, a good chunk of lawyers in the domain field would throw up their hands and say, “Oh, there’s nothing you can do about that, since your contract to mow your lawn is not property.”
That is complete and utter bullshit.
Even if I can’t find the guy, I can sue John Doe on a variety of claims, and get an order directing the lawn mower to mow my actual law instead.
This idea that “unless domain names are property, you have no legal claim to get a ‘stolen’ name back” is the product of lazy lawyering.
If the rest of the legal world operated like domain name lawyers, then we’d see endless arguments over whether “getting your grass cut” is or is not a form of “property”. It is a boneheaded and unnecessary debate.
But, sure, let’s get a UDRP decision in which it is okay for the Complainant not to disclose their multiple refusals of registrations of the word mark, and in which the text in their figurative registration is disclaimed, so that other claimants can use those circumstances to go after non-stolen generic domain names. That’s just a great fucking idea.
Great, so you have tort claims John. However, none of these will get you a domain name recovered if the defendant can arguable show that s/he is a bonafide purchaser for value. In such a case you have a damage claim only. And, none of your “non-lazy lawyering” claims are effective absent showing personal jurisdiction over the defendant – whomever that may be.
If you want to pursue the litigation along the lines you suggest John, have at it and good luck. Instead of the domain, you will at most have a judgment that might be worth something north of zip – but not much.
My way you focus the real recovery on the domain. You can always add the “non-lazy lawyer” allegations as well as anyone would. However, if the goal is the return of the domain, your suggestions will end up short of the mark and you know it.
As it turns out the UDRP angle was effective. It prevented inter-registrar haggling over indemnification, added credibility to the theft claims, locked the domain in the meanwhile and let everyone work in a controlled environment without marching off to engage in expensive litigation and argue about whether domains are property or bananas.
All in all, an efficient and immediate solution. All over and done with in 48 hours. Not bad IMHO.
Paul Keating
Notice that the new site has gay.porn & mobile.porn in the menu, though leading to those with .com 😉
“And, none of your “non-lazy lawyering” claims are effective absent showing personal jurisdiction over the defendant – whomever that may be.”
You can premise the jurisdictional claim on where the acts were performed – i.e. at the registrar, or at the registry if the domain name was moved to another registrar. The defendant is a Doe defendant.
It doesn’t excuse certifying a facially frivolous trademark claim that hurts domainers.
“It prevented inter-registrar haggling over indemnification, added credibility to the theft claims, locked the domain in the meanwhile and let everyone work in a controlled environment without marching off to engage in expensive litigation and argue about whether domains are property or bananas.”
I don’t see any report of any of that in what Mike posted.
John,
Anyone with a brain cell could make the argument that by entering a website located who knows where the actor “entered the jurisdiction”. And? You end up with a motion to dismiss which delays things for 20 days, you respond, the court issues a decision. The losing party appeals. 24 months later assuming you win, you are back where you started. And 50k poorer.
Regarding the mark, it is valid NWS your comments. I am fully aware of its limitations but was not the one who filed it. The UDRP reasonably sought recovery as fast as possible in an as economically efficient means as possible, And, it apparently worked. The domain was never off line.
As for the delays, you know full well that absent something to push them gaining registrars will want some assurance that the theft claim is real. This is reasonable given the nature of their biz. We both represent registrars, But the method worked and there was no need for lazy lawyers. Stay tuned…….
Something tells me Mike will have more to say shortly…..
So…whatever happened to the degree to which some courts had affirmed that domains are property, such as for the most famous case of all, sex.com of course. Is that all out the window now?
Okay…”At no time […] fee to retrieve its rightful property.” Can’t be completely out the window then. By the way, kindly pardon my ignorance and relative lack of knowledge in advance. I’m just an inquiring mind here and definitely not as up on the legal niceties as so many of you are now…In mind I would have thought it could/should be treated as fairly straightforward “theft,” however…
(Quote from “recovered” statement posted by Elliot Silver on DI.)
So to be clear this is ICANN position
They expressed the position in a document in which it is requesting the court to adopt their position
Lets see how the court rules on this.
Just off the cuff and with very limited knowledge of what I gather you are referring to, I’m pretty sure I saw something somewhere to the effect that this is ICANN’s position about ccTLD’s only (i.e., “not property” or something like that) and not necessarily about gTLD’s or any other kind of TLD at all.
(So of course, please correct me if that is also mistaken…)
Interesting task to hijack domain names and make money for the domain registrar account owner, registrant and administrative contact,,, which in my case will never see money by receiving click web templates and announcements to give money to Google Adsense or DoaminSponsor.com where I have parked without giving any permission from this 6 years ago and the main premium domain I have three all ICANN accredited registrars have kidnapped and I do not see any money, this mafia is a market where the scam is speculate where the first thing lawyers included (not all be so, the legality of a few to save this profession) receive minutes of the main registers filled with money in their accounts in tax havens to go there Delaware is far nearby.
If you want to see visit http://www.dnb.com is free search. To learn more you pay nothing bad is this information that is free of human rights in any country in the world where freedom which I doubt many countries experience one of the biggest markets and industries worldwide.
ICANN for me is Al Capone and Wall Street is the place as sex.com bleach which was always there, so there is no more words and phrases on these name hijacking unpunished by the laws of United States Domain America in all its states.
With all my respects to those who may be offended this is the truth of what I have stopped winning by fraud over $ 5000K for some is a laugh for me to understand why in this country die more innocent than guilty for shooting freedom freely.