ICM Again Asks Court to Dismiss Manwin's Antitrust Claims

May 8, 2012 5:45 PM PST

LOS ANGELES — For a second time, ICM Registry has asked a federal court to dismiss Manwin's antitrust claims against the .XXX operator and ICANN, saying the adult entertainment conglomerate has failed to state anticompetitive conduct.

Manwin and its newly acquired Digital Playground unit teamed up in November just prior to .XXX's general roll out to seek "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."

But ICM Registry on Tuesday moved for an order dismissing claims under §§ 1 and 2 of the Sherman Act on grounds that Manwin failed to plead antitrust injury, failed in allegations that ICM Registry and ICANN conspired to create anticompetitive restraint or to monopolize a relevant market and that Manwin hasn't alleged that ICM Registry engaged in unilateral anticompetitive or exclusionary conduct — all legal standards for antitrust cases to survive motions for dismissal pursuant to federal Rule 12(b)(6).

"Plaintiffs have now had two shots at fashioning a viable antitrust case," ICM Registry said in a filing on Tuesday. "[B]ecause further amendment would almost certainly be futile,  ICM respectfully moves this court to dismiss the amended complaint in its entirety with prejudice."

ICM Registry, in response to the amended complaint, said that Manwin's claims are "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."

But ICM Registry said that its not in the business of offering content via .XXX domain names and that Manwin is seeking "sweeping, inconsistent 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."

Manwin operates numerous adult brands, besides Digital Playground, including Brazzers, YouPorn, Twistys, Spankwire, Webcams, Tube8, ExtremeTube, KeezMovies, Mofos, ExtremeTube, JuicyBoys and PornHub.

The company recently filed papers overseas seeking to merge operations with RK Netmedia, operators of Reality Kings and BangBros, and is a licensee for Playboy TV through its Playboy Plus Entertainment division. It also recently made a bid for transactional TV operator New Frontier Media.

ICM Registry recently submitted applications to ICANN for three new adult-oriented gTLDs: .sex, .porn and .adult. If awarded, ICM Registry could control the most prominent adult-oriented TLDs.

Manwin spokeswoman Kate Miller declined comment on ICM Registry's response to the first amended complaint, citing the company doesn't comment on pending legal matters.

Stuart Lawley, ICM Registry's CEO, told XBIZ that "the response speaks for itself."

"We have always contended that the claims were baseless in law and totally without merit," he said.

ICM Registry has asked the U.S. District Court to schedule a hearing on the motion to dismiss by July 30.

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