Antitrust Lawsuit Over .XXX Domain Names Charges Price-Gouging, Registration Monopoly

Now that the flood gates for .XXX domain name registrations are open, one adult website company owner and manager chose to complain about registration fees by filing an antitrust lawsuit.

Luxembourg-based plaintiff Marwin Licensing International SARL accused the Internet Corporation for Assigned Names & Numbers (‘ICANN’) and ICM Registry, LLC of engaging in “monopolistic conduct, price gouging, and anti-competitive and unfair practices.”

Marwin owns and licenses trademarks and domain names to pornography website operates, and manages online content for Playboy Enterprises, Inc. The 44-page lawsuit contends that website owners are somehow “forced to pay excessive fees for .XXX defensive registrations” that may have little or no value, but benefit the defendants.

A number of entities use defensive registrations to protect their brands: companies, academic institutions, and organizations have all utilized the strategy.

Law professors Michael Froomkin and Mark Lemley discussed antitrust concerns over domain registrations in a 2003 law review article, ICANN and Antitrust. They gave some situations where ICANN, with government oversight, could avoid antitrust liability:

By delegating policy-making authority to ICANN, a private actor, without putting in place any real mechanisms for accountability, the government has created some unanticipated legal problems. It seems clear that the government itself could operate the legacy root in a way that excludes alternate roots without violating the antitrust laws. Similarly, the government should be able to impose a uniform domain name dispute resolution policy on registrars and registrants without antitrust liability, although this might require legislation. It could also delegate these tasks to a private entity like ICANN without antitrust liability if the government affirmatively set the policy and actively supervised ICANN’s implementation of it.

This case will test the whether ICANN can avoid antitrust liability, possibly under an analysis like Froomkin’s and Lemley’s article.

You can see the full case docket and legal filings here, Manwin Licensing International SARL v. ICM Registry LLC, and read the full text of the lawsuit below:

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