.XXX Press Release Was Protected Speech, Manwin Says

Dec 11, 2012 12:30 PM PST

LOS ANGELES — All of ICM Registry's claims fail in its $40 million countersuit against Manwin, the adult entertainment conglomerate said in court filings on Friday.

Attorneys for Manwin, which initially sued ICM Registry for  monopolization and price gouging in its operation of the .XXX top-level domain, argue that the countersuit is deeply flawed for a variety of reasons, most fundamentally because ICM Registry purports that Manwin and its Digital Playground unit "somehow monopolize an ill-defined 'online search' market."

"Recognizing that Manwin could never monopolize such a market, ICM attempts a bait and switch and instead alleges Manwin’s supposed sales volume in other purported 'markets' — such as for adult tube sites,” Manwin counsel said in their motion to dismiss first-amended counterclaims.

"What ICM in fact alleges is no more than Manwin’s vigorous and proper opposition to .XXX and ICM’s own illegal practices. Such opposition, including this suit, may displease ICM but does not negatively affect competition in any cognizable market and could never support an antitrust claim."

On Friday, Manwin attorneys simultaneously filed a special motion to strike state claims using California's Strategic Lawsuits Against Public Participation statute, also known as SLAPP.

In the special motion, Manwin said that counterclaims should be dismissed because ICM Registry can't prove that Manwin's speech in a press release was not protected activity in opposing .XXX

Manwin attorneys were referring to a Dec. 2 Manwin press release disseminated by Communications Director Kate Miller that said:

"In addition to the lawsuit filed on Nov. 16, 2011, Manwin has determined to cease any and all Internet liaisons with the .XXX top-level domain.

"As of today, Manwin has banned all activities between its  brands and internet sites registered with a .XXX TLD.

“'We oppose the .XXX domain and all it stands for,' said  Fabian Thylmann, Managing Partner of Manwin. 'The lawsuit was just the beginning. Through this ban, we hope to make a strong statement against the .XXX domain.'

"Manwin will no longer permit content from or advertising for .XXX websites on its tube sites.In addition, Manwin will not permit its content to be used or advertised on .XXX websites. This will prevent ICM or .XXX from exploiting the 60 million daily visitors to Manwin’s network sites.

"By permanently blocking the .XXX domain, Manwin  hopes to send a clear message that it does not support ICM or .XXX."

Manwin counsel said that California’s anti-SLAPP statute would be appropriately employed in its special motion because it summarily disposes of meritless causes of action intended “to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances."

Both ICM Registry’s counterclaims are subject to the anti-SLAPP statute, Manwin attorneys said, because they are based in large part on protected alleged Manwin speech or conduct.

"Public speech on a matter of public interest is protected activity under the anti-SLAPP statute; even private speech  about a matter of public interest is protected," Manwin counsel said. "Manwin’s speech about and criticizing .XXX is plainly about a matter of  public interest."

Manwin has asked for counterclaims to be dropped, as well as attorneys fees if the court grants the anti-SLAPP motion.

The legal battle between the two entities has been raging for more than a year now.

Manwin filed its original suit in November 2011, alleging 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. 

In October, ICM Registry filed its $40 million countersuit against Manwin, alleging that Manwin's current dominance in the adult industry is so strong that many porn entrepreneurs are forced to advertise and release content on Manwin-owned network platforms.

Manwin, as well as its Digital Playground division, also allegedly engaged in predatory acts to prevent and coerce others in the adult entertainment industry from utilizing the .XXX TLD platform.

Officials from both ICM Registry and Manwin did not respond for XBIZ comment by post time.

A hearing on the anti-SLAPP motion and motion to dismiss is slated for Feb. 11 at U.S. District Court in Los Angeles.

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