ICM filed a motion to dismiss Manwin’s complaint for Anti-Trust on the .XXX extension for a second time yesterday. (You can read the motion to dismiss again here).

Here are some of the highlights of the Motion to Dismiss:

“”Even though it is their second try, Plaintiffs’ First Amended Complaint fails to state a claim and should be dismissed.”

“The Amend Complaint is (like the original Complaint) nothing more than a transparent attempt to use the antitrust laws to eliminate a new internet platform for adult content—.XXX—that Plaintiff Manwin perceives as posing unwelcome competition to its dominant .com adult-entertainment empire.”

“Indeed, Plaintiffs’ various antitrust theories not only fail to allege the requisite elements of Plaintiffs’ claims for relief, they are also internally inconsistent.”

“For example, Plaintiffs contend that ICM and ICANN were conspiring to eliminate competition for the establishment of adult-oriented TLDs and .XXX registry services, notwithstanding the Amended Complaint’s detailed recitation of the long and frustrating history of ICM’s efforts to secure approval for the .XXX Top-Level Domain Name (“TLD”), including repeated ICANN rejections of its application and the apparent absence of interest from any other bidders.”

“Similarly, the Amended Complaint makes clear that Plaintiffs’ real concern is with the competition to their .com websites that may be posed by rivals offering adult content via .XXX domain names—a business in which neither ICM nor ICANN participates. But this is not a concern of the antitrust laws, which have long been held to protect the competitive process and not the profit streams of individual firms.”

“The proposed remedy for these purported violations further exposes the baselessness of Plaintiffs’ claims and their ulterior motives in bringing this action. Unable to show any damages from the challenged conduct, Manwin and Digital Playground instead seek sweeping, inconsistent and unsupportable injunctive relief.”

“Unfortunately for Plaintiffs, under the Supreme Court’s most recent formulation of the pleading standard in antitrust cases, they must do more than merely assert the existence of Sherman Act violations to get past a Rule (b) motion.

“Given the absence of factual allegations plausibly suggesting the existence of antitrust injury, standing, any unlawful ICM-ICANN agreement, or even unilateral anticompetitive conduct, the Amended Complaint must be dismissed.”

“Plaintiff Manwin Licensing International, S.à.r.l. (“Manwin”) is a business headquartered in Luxembourg that “owns and licenses the trademarks and domain names used for many of the most popular adult-oriented websites,” including YouPorn.com (“YouPorn”), the single most popular free adult video website on the Internet. ”

“”The Amended Complaint contends there are two separate relevant markets at issue in this case. ”

“The first is for so-called “defensive registrations”—the registration of names previously registered in other TLDs in .XXX”

“Purchases of these sorts of registration services “are not intended to make use of a registered name for [operating an] .XXX website with new content, but only to prevent or block such use by others.”

“Such defensive registrations are allegedly necessary in order to “preclude others from registering and using the owners’ names in .XXX” and prevent the loss of business and customer confusion that might result. Id. ¶¶ (a), . ICM is alleged to have a “monopoly” in this market because there purportedly are no reasonable substitutes for blocking the use of a single domain name in the .XXX TLD. Id. ¶ .

“Plaintiffs also contend there is a second, “incipient” relevant market for “affirmative registrations” of names within TLDs connoting adult content.“

“Affirmative registrations are intended to make use of a domain name for the purpose of identifying websites showing new, adult-oriented content.”

“Despite the fact that .XXX fully launched on December , , and, by their own admission, YouPorn.com “is the world’s most popular source for free adult-oriented streaming videos” (Am. Compl. ¶ ), Plaintiffs contend there is a “serious danger” that ICM “will establish and monopolize” this purportedly distinct market.”

“Despite their general assertions of having been unable to register in .XXX because of anticompetitive conduct by ICM, a close review of the Amended Complaint reveals that what Plaintiffs are really complaining about is the fact that they lost the opportunity to purchase the least expensive defensive registry options offered by ICM because they missed the deadline.”

“During a two- month “Sunrise” period ICM “sold through approved registrars … the permanent right to block use of names in the .XXX TLD” for “a one-time fee ”

“Plaintiffs admit that this option was available to all registered trademark owners, which they suggest they are, yet do not allege they ever sought to purchase permanent blocking rights.”

“Plaintiffs also concede that they have never sought to affirmatively register in .XXX”