The chaos that Vint Cerf recently warned about from alternative top-level domain (TLD) providers is already happening.
Two companies are currently registering dot-xxx domains, but those who want a piece of the action can't be guaranteed who will be able to access their sites, and for how long.
People who type a dot-xxx domain into their browser could be directed to sites registered by any of the three registrars. And because there is little copyright law governing TLDs, none of the would-be registrars are guaranteed of being able to claim a permanent right to the domain.
Idealab's New.net plans to offer 20 new top-level domains earlier this month, including dot-xxx.
Domain Name Systems is a domain registrar that works hand-in-hand with the adult industry and offers both dot-sex and dot-xxx domains.
ICM Registry, which was the only company to submit a dot-xxx domain proposal to ICANN (Internet Corporation for Assigned Names and Numbers), is still lobbying to get the domain supported by the Internet's governing body.
During recent ICANN meetings, Cerf said that the existence of new "unauthorized" domains could lead ICANN -- in order to reduce potential ambiguity -- not to approve any similar domain name itself.
"If the only argument that these registrars have is 'I was there first,' that legal right has to have some basis in the law, otherwise, who cares if you're there first?" said Jason Epstein, an e-commerce and copyright attorney with Baker Donelson Bearman and Caldwell. "The place you'd look is to intellectual property law. The general rule is that there is no intellectual property rights to a TLD. 'I used it first' is not good enough."
Using trademarked words as part of a TLD is verboten. If someone registers Playboy.xxx, that would be a "guaranteed lawsuit" because Playboy Enterprises Inc. owns that trademark. But if a DVD retailer wants to use the name "AdultDVD.xxx," unless that name is trademarked or service marked, any company can list it as an available domain.
Depending on your ISP or browser setup, typing in the "AdultDVD.xxx" could take you to sites registered by any of the three companies.
Website addresses are resolved, or located, by DNS (domain name service) servers that are setup by ISPs, or by making DNS entries to your browser's configuration file. The competing domain registers are establishing relationships with ISPs to get them to point to their sites, so depending on where you log on, you could get different results.
Domain Name Systems (DNS) has only just reached out to New.net and says it would rather work with New.net than sue them, but the CEO didn't sound very conciliatory. "I think certainly New.net has the least legal position in all of this as a Johnny-come-lately. We're certainly going to press our issue with New.net," said Gord Jeske, CEO of Domain Name Systems.
ICM, meanwhile, thinks it will triumph. "I am not too concerned about the other pseudo-registries reselling dot-xxx domain names. Anyone can sell snake oil," Jason Hendeles, president of ICM said via e-mail.
Hendeles has been in Australia at an ICANN meeting pushing for approval of the dot-xxx domain. "Our proposal was not rejected and has a strong possibility of being approved in the next round once we have secured the consensus support of the broader Internet community, ICANN and the Department of Commerce. We are confident that we are very close to reaching that point. To choose between New.net and ICANN and the DOC seems like a pretty easy choice to me."
New.net executives were also in Australia for the ICANN meeting, but CEO David Hernand says he would rather work with other companies involved in the dot-xxx market. "If either company wants to contact us to discuss these domains, we welcome it. Everyone has a right to sell the names, we're not claiming exclusive ownership," he said. "It makes good biz sense to want to work with as many people as possible."
One domain registrar is pessimistic that the companies will agree. "What's going to happen is people that will benefit from that mess are the attorneys, and sites that are trademark related," said Alex Tajirian, president of DomainMart, a domain registry service who supports the idea of more top-level domains, but wants it handled in a more orderly manner.
Fault lies with ICANN, said DNS' Jeske. "ICANN could have made this a whole lot easier if they had just approved the dot-xxx domain."
"ICANN has been really slow in responding to the market, and with all the news it will take even longer time to approve the extensions they've already approved," said Tajirian said. "A lot of people have criticized them with the way they allocated domain names to registrars. There seems to be a lot of arbitrariness to the process."
