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13 Apr 2015
Good taste has never been a criterion in ICANN's new domains program, and domains including .fail and the remarkably vulgar .wtf have become part of the DNS with little comment. Now we have .sucks, which is intended to empower consumers, but does so in a way so clumsy that ICANN is asking regulators in the U.S. and Canada for an excuse to shut it down. The original idea for .sucks was apparently from consumer advocate Ralph Nader back in 2000. The idea was, and still is, to be a place for consumers to vent complaints about businesses. In the U.S., at least, it has clearly been legal to use insulting domain names to comment on a business, since a 2003 appellate decision about names including taubmansucks.com. So since .sucks is legal, what's the problem? The problem is that ICANN's new domain program has an elaborate set of rules to protect trademark holders from cybersquatting. For most domains, the theory that people might expect names like disney.miami or viagra.hockey to have some relationship to the company that owns the brand name is not totally absurd. So ICANN has a Trademark Clearinghouse where trademark registrants can put domain registries on notice about their claims, and each domain has a "sunrise" period where trademark owners get first dibs on domain names that match their marks. For domains with insulting names, this logic doesn't work. The only plausible reason for a trademark owner to register a their name in .wtf or .fail or .sucks is to prevent other people to use it to complain. So how does this work with the ICANN rules? For .wtf and .fail, trademarks win and consumers lose--the registry, Donuts, has a service that lets trademark owners block their names across all 200 Donuts domains for one low price. The .sucks registry has clearly thought about these issues, and has come up with some rules that make some (not an unlimited amount of) sense. First, they published a PIC (Public Interest Commitment) that adds some additional rules, mostly that they'll have an expedited process to turn off domains used for cyberbullying or pornography. Given the possibilities for domains like janie-smith.sucks, these seem like a good idea. They also plan to ban parked web sites, presumably to discourage domain hoarding and speculation. Then they start to get clever. Some domains specifically limit registrants to members of a specific community, in theory at least. All names in .travel are supposed to be organizations in the travel biz, name in .jobs from the human resources community, and so forth. These haven't worked very well (they let me into .travel on the basis of a four page web site), and the vetting process is slow and tedious. So to encourage the registrants they want, Vox Populi, the operator of the .sucks registry, had the idea to flip it around. A normal registration in .sucks will have a wholesale price of $249, but they will have a special Consumer Advocate Subsidized registration of $9.95, which has a whole bunch of rules about using the names for comments on businesses, notably requiring the name be pointed to a sub-site of the everything.sucks discussion forum, whose owner nobody knows although it's presumably an affiliate of Momentous.ca which owns Vox Populi. That could work, so long as companies don't swoop in during the sunrise period to grab their names before grumpy consumers can do so. At that point they outsmarted themselves: to discourage sunrise registrations, they priced them at $2499, about ten times more than any other domain has ever charged. They also have even more expensive "premium" names for generic words like life.sucks and divorce.sucks, but there's nothing new about that; flowers.mobi sold for $200,000 a decade ago. Some companies ignored the pricey sunrise domains (how bad could one more complaint site be?) or in a few cases made fun of them. But from the outrage and howling in the industry, it is clear that an awful lot of companies feel it is urgent to register their name in .sucks before anyone else has a chance to do so, presumably because they actually do suck. The trademark lawyers, who by long-standing policy have no sense of humor or proportion whatsoever, sent ICANN a letter full of words like "predatory" and "shakedown". ICANN, in its usual deer in the headlights position, apparently never thought about the possibility that someone might use a domain name as a shakedown, so there's nothing in the multi-hundred page applicant guidebook about it. (This is understandable since the idea has only been mentioned about a million times over the past decade.) What's more they tend to panic in the face of legal threats, so their response has been to write to the Federal Trade Commission in the US, where ICANN is, and to the Office of Consumer Affairs in Canada, where Vox Populi is, saying, pretty please, tell us they're doing something illegal so we have an excuse to shut them down before those scary trademark lawyers, well, you know. Personally, although I don't think that new TLDs are a very good idea, since we're stuck with them there is some merit to having one for consumer complaints, which the Internet has in profusion. The trademark argument is absurd. The obvious reason to register a name in .sucks is to complain about someone or something. Trademark holders by their nature are public figures, and in the U.S. at least it's clearly legal to make public complaints about public figures. Anything someone can say in a .sucks web site they can say, and probably have, somewhere else, so it's hard to see what plausible threat there could be to trademark holders. So, no, this domain may not be a particularly good idea, but it's also not a shakedown. Perhaps all those companies and their lawyers could think about how to make consumers happy, rather than trying to shut up the ones they haven't.
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