ICM Registry (ICM) , operator of the .XXX extension asked the court to dismiss the suit (pdf) brought by Manwin LICENSING, INTERNATIONAL, Operator of YouPorn.com against ICM and ICANN on antitrust grounds.
In a “response memorandum in support of its motion to dismiss the case” filed last Friday, ICM asked the court to dismiss the case against Mainwin based on “glaring factual differences” between this case and an appellate court ruling involving VeriSign.
In its 2nd amended complaint Manwin’s cited the federal appeal courts decision in a case brought by Coalition for ICANN Transparency, Inc (CFIT) against Verisign, which held that the registrar violated the Sherman Act by colluding with ICANN to eliminate competition for the registry contract.”
You may remember we wrote about this case back in 2009 when that federal court ruled in favor of CFIT, which was later dropped the suit after funding for it ran out.
According to the memorandum ICM says:
“Manwin makes very clear that they have a single-pronged strategy for surviving defendants’ motions to dismiss: to try and convince the court that this lawsuit is a carbon-copy of another antitrust case involving ICANN and a TLD registry operator”
“In the antitrust suit, Manwin alleges that ICM Registry received the original and renewal registry contracts without competition, is charging above-market .XXX prices, imposes other anticompetitive .XXX sales restrictions and has, because of its ICANN contract, precluded other adult-oriented top-level domains from operating.”
“ICANN approved the .XXX application through a process that Manwin admits was fully open to other applicants.”
“The activities found predatory in the VeriSign case, included a lobbying campaign, financial pressure, and litigation threats, but, critically, all of this conduct was alleged to have led directly to ICANN’s decision to forego competitive bidding and award the renewed 2006 .com contract to VeriSign on favorable terms.
“Although Plaintiffs have tried to mimic those allegations, the facts alleged here get in their way. ”
“As the Amended Complaint itself makes clear, all of ICM’s purported lobbying efforts were unsuccessful; ICANN responded to them by rejecting ICM’s .XXX TLD proposal on three separate occasions.”
“ICM Registry points out that Manwin’s complaint identifies no other registries which sought to operate a .XXX TLD ”
“Despite Plaintiffs’ attempt to blur these fundamental distinctions, they preclude reliance on VeriSign as a basis for sustaining the Amended Complaint. And no other plausible grounds for permitting this case to proceed appear in the Opposition.”
“Having now had two opportunities to formulate its copycat VeriSign claim, Manwin is not entitled to a third,”
ICM goes on to say that Manwin failure to buy any .XXX domain names precludes their claim as well:
“Plaintiffs contend that their failure even to seek to purchase defensive or affirmative registrations in .XXX does not preclude a finding of antitrust injury, since all they need to show for injunctive relief is “threatened loss or damage.”
“The problem with this argument is that antitrust plaintiffs (even those seeking only an injunction) must demonstrate that their threatened injury is (1) due to unlawful conduct by the defendants; and (2) concrete and imminent, not mere conjecture about future possibilities. ”
“Thus even if Plaintiffs’ failure to seek defensive or affirmative registrations in .XXX could be linked to any aspect of ICM’s operation of the registry, the purported “injury” that may result would not be attributable to any unlawful conduct by a defendant.
“Moreover, having been unable to identify a single instance of “diversion of profits” or “lost business opportunities” due to the absence of an .XXX registration, Plaintiffs plainly have not met their burden of pleading an imminent and tangible threat of any harm, much less harm to competition in some relevant market”
“Plaintiffs’ only response is to suggest that ICANN was somehow duty-bound to have another round of competition for the .XXX registry contract itself, after ICM had invested 10 years of time and money into getting .XXX approved over ICANN’s repeated rejections. ”
“Plaintiffs cite no authority for this remarkable assertion because none exists.”
“VeriSign itself is clear that “competitive bidding is not required” to enter “exclusive” agreements even for existing, established TLDs like .net—much less a completely new one like .XXX.”
The court filing asks the court to dismiss “The Amended Complaint with prejudice.”
Manwin is clearly trying to kill off the competition with this lawsuit. That’s as transparent as glass. Even those opposed to .XXX would have a hard time disproving Manwin’s objective. Manwin either wants the .XXX extenson gone, or they seek to ultimately own it themselves. Either way, it’s all about competition. When a company as big as Manwin is scared about the competition .XXX brings, I find it ironic that some claim .XXX is doomed to fail. Apparently, Manwin doesn’t agree. Otherwise, why waste time and money with a lawsuit? Manwin could have simply let the .XXX extension fizzle out into oblivion. Manwin is SCARED. You don’t file a lawsuit against someone/some entity unless you perceive a threat. Hopefully I can voice my opinion without it turning into a full blown debate, but that’s my two cents anyway. Good article.
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This could very well prove to be an important anti-trust case, one that might go all the way to the Supreme Court with consequences that could go way beyond two pornsters duking it out.
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@ Paul
Well said. Manwin has realized that their unethical business practices have been finally exposed, and their customers have started to realize that they have been mislead for long time by Manwin’s online business. Not only this, but Manwin also insisted to keep misleading the public by refusing to join the ” Keep safe and legal” online business led by ICM Registry, instead Manwin wanted to keep abusing the internet space to meet their greed. Day by day Manwing is getting out of the game and two years from now we will remember Manlost and say RIP.
“This could very well prove to be an important anti-trust case, one that might go all the way to the Supreme Court”
Or.. like the vast majority of all lawsuits, everyone will get tuckered out and drop it.
– What means ANTITRUST ?
– What is the Sherman act ?
– How is it tha some countries do not care about country extensions cctld of other countries?
– How is it that the biggest percentage % of applicants for newgtld are companies of the same country ?
China will be the Economic Power number one before you ve woken up ; USA is a dying Economic power like other civilizations in the past, check your history of the word (the word was not created 200 years ago, like most american believe world war one is not dated between 1917 and 19178 but starting in 1914…) like the ottoman Empire, Greece or Roma with Cesar…Now it is China’s time !
– What if China was doing the same as you (Usa) because they are only counting for 20 / 25 % of the world?
– Do you consider to be parked as gay or not, as loving sex or not (Let me laugh listing 145 porn domain names on 220 000 applications for a “SAFE internet ” JOKE there are between 2.5 and 260 million adult/porn sites and they are listing …145 on xxx.xxx …!), as beeing a democrat or not let s imagine in non democratic countries someone against the communist party… there is a little subtile allusion to a country are you smart enough to see who I am talking about ??, as beeing put a LABEL on your head depending of your tastes, opinions, sex orientations is the real meaning of FREEDOM and pretending to be INNOVATION? Are you asleep or blind ?
– DOT NET and DOT WEB WEBS WEBSITE ?? innovation ? xxx sex porn adult gay Innovation ??? Dot MOBI and TEL and DOT PHONE MOBILE innovation ?? dot catholic dot islam ?? No, far from it !
open your hears : In international intellectual property rights none of the pretending to be innovative gtlds can see a country code extension gtlds ? why because one and two and three generic worlds have been ever taken ok e g like cars.com dot car dot cars dot autos ? car.fr and cars.fr car.co.uk cars.co.uk exist so no cctld is applicable ? YOU UNDERSTAND or to complicated for you ?? that means pardon me to be so direct but after the internet bubble, after the subprimes coming from Usa, we are now assisting to the second internet bubble !
– Why China is forbidding different things of the internet like Tienamen and filtering and stopping all that is against its political interests, forbidding the access to news like the Arab Revolutions and or definition of “standards”….?
– What is SIPA SOPA PIPA ACTA …among others ? According to you, who are unable to read and understand the consequences of the law voted in your own country on your personal/individuals rights like spying citizens mailbox in the name of property protection, just watch americancensorship website …– Why did the european parliament rejected the ACTA proposal by 478 against 38 yesterday the 4th of July, the day of independance ?
– Have you noticed that there is an UN independant objector ? Have you noticed that UN is fighting to have the governance of internet instead of US ? Have you open a newspaper outside of Usa ??
– From where you are (Usa) how would you interpret this phrase said by a european man involved in defense of the rights and close to the Politics: “there is not a us internet and a european internet ?”
http://timesofindia.indiatimes.com/tech/news/internet/European-parliament-says-no-to-anti-piracy-law/articleshow/14691660.cms
http://www.humanite.fr/monde/rejet-d%E2%80%99acta-c%E2%80%99est-une-victoire-pour-la-democratie-500245
TRANSLATE ON LEXICOOL THIS IS A VICTORY FOR DEMOCRACY !
– Does it mean the New Gtld program is not ar risk ?
Wake up my friend ! come on read 1984 G Orwell with Big brother and after you will have the right to talk of freedom, liberty, free trade practices, antitrust and other things you have no little idea of the smallest meaning…not before
(I just wanna add SEX is not an infamous business meaning that since the world is world ; it is not because of internet there is sex … Move outside travel go to POMPEI and check what a roman orgy is…)
you read you meditate and then after you can talk…
JUST FOR YOUR INFORMATION
The good questions must be What is the turnover in porn movie in North America, Europe? There is not a high turnovers of course : China 27 billion usd in 2006…Usa 13,3 billion usd the only little difference is the number of people in each country…if you compare the turnover to the number of American, in percent more American are watching porn than Chinese, CRAZY, No ? http://internet-filter-review.toptenreviews.com/internet-pornography-statistics.htmlhttp://en.wikipedia.org/wiki/Category:Firearms_manufacturers_in_the_United_States
http://blog.cytalk.com/2010/01/web-porn-revenue/
http://www.forbes.com/2001/05/25/0524porn.html
http://www.morssglobalfinance.com/the-economics-of-the-global-entertainment-industry/
http://www.thedomains.com/2012/05/23/icm-launches-the-xxx-directory-for-developed-xxx-sites-xxx-xxx/#comments
ICM Launches A Directory For Developed .XXX Sites: XXX.XXX
The site features 145 sites each getting a small banner with a click through to each site
http://www.forbes.com/sites/julieruvolo/2011/09/07/how-much-of-the-internet-is-actually-for-porn/
“For example, N2H2 claimed there were 260 million porn sites “
for example, CYBERsitter claims to block 2.5 million adult Web sites–
2.5 MILLION PORN SITE OR 260 MILLION PORN SITE
http://www.thedomains.com/2012/05/05/girlsgonewild-loses-its-1st-udrp-on-girlsgonewild-name-the-domain-holder-didnt-even-defend-it/ http://dotxxxopposition.com/
http://www.freespeechcoalition.com/
http://domain-purchase.happyterry.com/2012/05/06/numbers-show-dot-xxx-sites-are-a-sham/
http://icannwiki.com/index.php?title=Stuart_Lawleyhttp://icannwiki.com/index.php/International_Foundation_For_Online_Responsibility
http://icannwiki.com/index.php/Sheri_Falco
http://www.premodomains.com/tag/icm-registry/ Perseverance Pays off: New .XXX TLD Generates $25 Million in 3 Months; ICM Registry Applies for 3 New Adult TLDs – With Stuart Lawley
http://fscblogger.wordpress.com/2011/10/05/fscs-diane-duke-debates-icm-registry-ceo-stuart-lawley/
http://tradingstocks.me/xxx-registrar-expected-to-bring-in-200-million-a-year/
OTHERS
http://www.lexicool.com/ then translation online
http://www.linformaticien.com/actualites/id/25507/le-parlement-europeen-rejette-le-traite-acta.aspx
http://www.euractiv.com/infosociety/goodbye-acta-meps-flex-muscles-a-news-513736
good reading