ICM Responds to .XXX Antitrust Claims, Asks for Dismissal

Jan 21, 2012 12:15 PM PST

LOS ANGELES — ICM Registry, in response to Manwin and Digital Playground's antitrust suit over .XXX, has asked a judge to dismiss claims against the registry, saying that it is protected by California’s anti-SLAPP statute.

The statute protects individuals, groups and businesses to prevent the chilling of participation in matters of public significance through abuse of judicial processes. When a lawsuit is brought for the purpose of chilling such participation, that lawsuit has been dubbed a SLAPP (strategic lawsuit against public participation).

ICM claims that the suit arises out of ICM’s establishment of the .XXX top level domain through petitioning and other activities protected by the 1st Amendment,and  seeks to enjoin the distribution of .XXX domain and its ability to serve as a forum for protected expression. 

Further, ICM says there are deficiencies in the plaintiffs’ federal antitrust claims and that they have failed to allege any fraud on the public, as is required to prove their claim under the “fraud” prong of California's unfair competition law that they have failed to allege any injury sufficient to confer standing under the law.  

Manwin Licensing International Sàrl and Digital Playground teamed up in November to wage an antitrust suit against .XXX operator ICM Registry and ICANN, which runs the Internet. 

The suit, waged just prior to .XXX's general roll out, seeks to "redress for monopolistic conduct, price gouging and anticompetitive and unfair practices, broadly harming competition, businesses and consumers, and arising out of the establishment of .XXX ... ."

Filed at U.S. District Court in Los Angeles, Manwin and Digital Playground's suit goes on to say that .XXX “defensive registrations” are causing confusion and dilution of adult websites’ values, and that the costs and disadvantages of them outweigh any benefit of the sTLD.

ICM and ICANN, in their joint response filed late Friday, asked a federal judge to dismiss the suit as an anti-SLAPP case.

"[T]he complaint here is nothing more than a transparent and ironic 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.

"[P]resumably because they cannot show any damages from the challenged conduct, Manwin and Digital Playground instead seek sweeping and unsupportable injunctive relief enjoining the .XXX TLD altogether, voiding the ICM-ICANN contract and/or imposing price and other restrictions on the offering of registry services." 

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