Right to Criticize Gets a Bigger Public Platform on the Internet with the Introduction of .sucks Domains

By Adam R. Bialek, Esq. and Gregory N. Brescia, Esq. of Wilson Elser   The Internet Corporation for Assigned Names and Numbers, more commonly known as ICANN, has recently approved more than a thousand new general top-level domains (gTLDs), which are anticipated to launch over the next few years. Challenging the stalwart gTLDs (.com, .net, .org, .gov and .edu), one of the recently approved gTLDs that will have a significant impact on trademark owners everywhere is the “.sucks” or “dotSucks” gTLD.   According to promotional materials: An easy-to-locate, “central town square” available 24 hours a day, 7 days a week, 365 days a year, dotSucks is designed to help consumers find their voices and allow companies to find the value in criticism. Each dotSucks domain has the potential to become an essential part of every organization’s customer relationship management program.   Is this an accurate description or is it a marketplace for extortion by the registrar who will charge brand owners high prices? Or will it result in a platform for anonymous defamation and fraud designed to destroy the reputations of organizations?   ICANN’s approval of the .sucks gTLD has not gone unnoticed. Specifically, former Senator Jay Rockefeller of West Virginia, who chaired the Senate Commerce Committee, spoke out against ICANN’s approval of the gTLD, saying that the ownership of .sucks acts as “little more than a predatory shakedown scheme.” Senator Rockefeller further explained that “… any potential this gTLD might have to increase choice or competition in the domain name space is overwhelmed by the ways it will be used to unfairly defame individuals, nonprofit organizations, and businesses.”  

How It Will Work As of March 30, 2015, trademark owners who have registered their marks with the Trademark Clearinghouse (TMCH) will have an opportunity to purchase the .sucks gTLD before the sale opens to the general public on June 1, 2015. This period of time strictly designated to registered trademark owners with the TMCH is called the “sunrise” period. Canada-based Vox Populi Registry Ltd. has established a suggested retail price of $2,499 per year for domain names registered during the sunrise period. After the sunrise period sets, the standard registration fee will be approximately $249 per name. However, sticking to its claim of allowing individuals to find their voices, there will be a “consumer advocate subsidized” price tier reserved for individuals who have complaints with a company. These domains will cost $9.95 each and will become available in September 2015. The caveat is that the domain cannot be used for a website, instead redirecting all traffic to a discussion forum on the everything.sucks website.

  Vox Populi has further announced that it will offer its registered users a “domain block” service, which allows registered users to prevent a name from being registered by any member of the public. The dotSucks Registry has created a list of premium .sucks names such as life.sucks and divorce.sucks. These will be available starting in the TMCH sunrise period and continuing through the general availability phase. After the purchase of a .sucks domain name, it is assumed that trademark owners will take all necessary steps to ensure that the domain name embodying the .sucks gTLD remains inactive.   Trademark owners will still have the ability to safeguard their registered marks via ICANN’s existing trademark protections and enforcement mechanisms in the event they decide not to invest in the .sucks domain names. Over the years, ICANN has implemented the Uniform Domain-Name Dispute Resolution Policy (UDRP). In the event an individual or entity uses a trademark owner’s mark in a manner that violates the trademark owner’s rights, the trademark owner may invoke the UDRP proceeding.   To be successful in UDRP arbitration, the trademark owner must establish the following elements: ·       The domain name registered by the domain name registrant is identical or confusingly similar to a trademark or service mark in which the trademark owner has rights ·       The domain name registrant has no rights or legitimate interest with respect to the domain name in question ·       The domain name has been registered and is being used in bad faith.   If the trademark owner is successful in the UDRP action, the domain name may be transferred or cancelled.   Historically, a UDRP proceeding has been a fairly reasonable and effective way to get the return of hijacked domains using the trademark of another company. Here, however, the domain registrant might have a reasonably legitimate interest in establishing a domain using the trademark since comment and criticism are legitimately protected by the First Amendment. It will be interesting to see how the UDRP arbitrators will interpret the bad faith element within a proceeding.

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