Abusive registration in the .xxx space is assessed under a sibling Policy to the UDRP, the Charter Eligibility Dispute Resolution Policy (CEDRP) which became effective as of September 1, 2011. Under the CEDRP the sole remedy is cancellation, paragraph 3 of Policy and 5(e) of Rules promulgated by the National Arbitration Forum. “A registered domain name in the .XXX TLD will be subject to an administrative proceeding upon submission of a complaint showing by clear and convincing evidence that the domain name in the .XXX TLD has been improperly registered or used under one or more of the circumstances in this section.” The Policy reads:

Any claim premised on non-use or improper use of a registered domain name in the .XXX TLD under this CEDRP shall be evaluated in light of practical circumstances relative to the length of time the domain name has been registered by its registrant and the adequacy thereof for engaging in preparation for eligible use of the domain name.

The “CEDRP is in addition to and complementary with the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the conditions herein may constitute lack of legitimate interests and/or bad faith as appropriate under the UDRP in relation to domain names in the .XXX TLD.” However, the CEDRP differs from the UDRP in at least one fundamental way, namely that

“Non-commercial commentary or criticism” of a specific person or business entity targeted by a registered domain name in the .XXX TLD will not be deemed a legitimate use.

Reference to a “specific person” introduces a new protective shield for individuals. The reference appears both in the Policy and the Rules promulgated by the National Arbitration Forum. The Rules read “Complainant means the single person or entity claiming to have rights in the domain name in the .XXX TLD, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to the domain name listed in the complaint.” While trademark ownership continues to be the rule, there is reason to believe that by employing the phrase “single person” the standard for unregistered trademark rights is more relaxed than under the UDRP.

The mechanics of assessment for the .xxx extension are set forth in Richard Branson v. Sean Truman, FA1201001423689 (Nat. Arb. Forum February 14, 2012). The Panel points out that in order for a respondent to be entitled to an .xxx domain name it must be a member of the “community” for which the extension is reserved. If a respondent is not involved in the sex or pornography industry and has no connections with it he is an ineligible holder. In Branson, the respondent explains that his motivation for purchasing was “to hold [it] as a souvenir” in expression of his “admiration of Mr. Branson.” Respondent admitted that he registered the domain name only after “Mr. Branson” failed to do so protectively:

The complainant [the Respondent explains] had ample opportunity to register the name if he believed that his rights may be under threat by another person registering the name. It has been stated that the respondent registered the domain name on December 10th 2011. This is 4 days after the .XXX domain names were open to the public. The .XXX was not registered prior to this date although there was ample time to do so.

See also HEB Grocery Company, L.P. v. Eric Gonzales, FA1112001421851 (Nat. Arb. Forum February 7, 2012) (“Respondent[] … stated that his actions were not in bad faith because he registered the disputed domain after he concluded that the Complainant lacked interest in doing so.”)

Respondents miss the point when it comes to registering in the xxx space. CEDRP ¶ 2(a) allows for cancellation of the domain name from Respondent when a .XXX TLD domain name “has not been registered in compliance with the Sponsored Community eligibility criteria.” The burden is on the complainant, but in order to justify its registration the respondent shall respond

specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name. [Rules, paragraph 6(b)(i)].

Membership in the sponsored community is a sine qua non as explained in the cited case: “Absent any industry connection or involvement, Respondent cannot be a member of the relevant ‘sponsored community’ and is ineligible to register any domain name on the .XXX registry.” If not a member of the sponsored community, and ineligible to register an .xxx TLD, the respondent lacks rights or legitimate interests and this in turn supports a finding of abusive registration:

While on the one hand Respondent submits that the name RICHARD BRANSON is not unique or unusual, Respondent nevertheless registered the domain because of Complaint’s notoriety. Respondent should have recognized that his registration and control of would serve to vex or embarrass Complainant. Registering and holding a .XXX domain name identical to Complainant’s mark without having any rights or interests therein is evidence of bad faith registration and use under Policy ¶4(a)(iii).

The Panel explained that “Respondent’s defiance of the applicable .XXX TLD registration eligibility requirements … [was] an additional independent ground demonstrating bad faith.”