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The DoC and XXX
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The difference between the trademark registration and the TLD is basic policy.
A trademark identifies the source or quality of goods or services, and is used to distinguish one’s products from another’s products. Trademark rights are established by mere use in commerce. If the trademark registrant brands its services as SEX.XXX, then the registrant is using a trademark and should be entitled to register it. The USPTO should not (and the First Amendment does not allow it to) discriminate based upon the apparent content of the product associated with the trademark. Simple as that.
Internet TLDs, on the other hand, are governed by a different standard. Each TLD must be rolled out with public policy in mind. If there is a threat to the stability of the Internet, then the TLD should not be added to the root. Internet stakeholders theoretically should be allowed to voice opposition before ICANN signs a contract.
Some have made the argument that ISPs will immediately filter out .XXX. Consequently, (i) traffic via the new domain will not move; and (ii) the TLD will be ineffective as routing identity. In other words, stability will be effected because traffic will be squelched. .XXX is not dead. Rather, the DoC and the GAC have asked ICANN to consider the matter further. Such consideration is consistent with ICANN’s mandate.
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