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Businesses call on regulators to stop .sucks “extortion”

ICANN’s Business Constituency wants US and Canadian regulators to intervene to prevent Vox Populi Registry, which runs .sucks, “extorting” businesses with its high sunrise fees.

The BC wrote to ICANN, the US Federal Trade Commission and the Canadian Office for Consumer Affairs on Friday, saying .sucks has employed “exploitive [sic] pricing and unfair marketing practices”.

The constituency adds its voice to Intellectual Property Constituency, which complained last month, causing ICANN to refer the matter to US and Canadian regulators.

Now, the BC has told the OCA and FTC:

We do not believe that exploitative and unfair business practices are conducive either to promoting end-user confidence in the Internet or to fair competition in the domain name space. On the contrary, the pricing structure adopted by Vox Populi for .sucks domain names is predicated purely on expecting the businesses and brands that drive global growth to pay extortionate fees for no consumer or market benefit.

Vox Populi’s tactics exploit businesses that neither want nor need these domain name registrations but feel unfairly pressured to register purely for defensive purposes.

The BC’s letter chooses to focus on saying sunrise names cost “$2,499 and up” (original emphasis). That’s based on the MSRP Vox Pop publishes on its web site.

In reality, Vox Pop is charging a registry fee of $1,999 per year for .sucks sunrise registrations.

Retail registrars can add hundreds of dollars in mark-up fees, but the leading corporate registrars that are selling the most .sucks sunrise names — MarkMonitor, CSC and Com Laude among them — have said that as a matter of principle they are only charging a nominal $20 to $25 processing fee.

It’s not the highest sunrise fee I’ve come across. The Chinese registry behind .top asked for $3,500 during its sunrise.

But the semantics of the .sucks TLD makes brand owners nervous and makes many of them feel that a defensive registration is a must-have.

The BC now write to regulators to “urge the FTC and OCA to expeditiously determine whether these practices constitute unfair trade practices”.

The letter points to US and Canadian regulations covering consumer protection for examples of where Vox Pop’s practices may fall short of the law.

The free speech opportunities afforded by .sucks do not outweigh the harms, the BC says.

It’s also interesting to note that while the BC appears to be running to regulators for assistance, it notes that it still fully supports the ICANN model.

There may be a degree of cognitive dissonance within the BC.

In a separate letter to ICANN, also signed by BC chair Elisa Cooper and sent yesterday, the BC seems to take issue with the fact that ICANN felt the need to report .sucks to regulators in the first place, writing:

We would like to understand the rationale for doing so. ICANN has ample authority, a clear obligation and the resources available to stop rogue practices through its contractual agreements with registries, its Compliance Department, and its broad duty to protect the public interest and the security and stability of the Internet, particularly for issues with global reach. Like all other gTLDs launched under ICANN’s program, .sucks has a global reach. It is not clear why ICANN feels it should seek clarification from these two North American agencies.

It’s worth noting that Vox Pop CEO Berard is a member of the BC via his PR agency, Credible Context. He was Cooper’s immediate predecessor as BC chair, leaving the post last year.

Correction: Thanks to the many readers who pointed out that Berard was actually the BC’s representative to the GNSO, not its chair. Apologies for the error.

The letter tells Global Domains Division president Akram Atallah that “viewed in its entirety, Vox Populi’s pricing scheme is a violation of the Rights Protection Mechanisms (RPMs)” developed for the new gTLD program, alleging it discourages use of the RPMs and encourages cybersquatting.

It claims that if Vox Pop populated its Sunrise Premium list (now known as Market Premium, it seems) with data from the Trademark Clearinghouse it could be in violation of its Registry Agreement with ICANN.

My sense has been that the names on that list were actually culled from zone files. Vox Pop has said it was compiled from lists of names that have previously been defensively registered. Most of the names in the TMCH have not been defensively registered.

The BC asks for ICANN “to take strong action”, but does not specify what, exactly, it wants.

The letter to the OCA and FTC can be read here. The letter to ICANN is here. Both are PDF files.

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Has .sucks abandoned its Sunrise Premium program?

Vox Populi Registry has done away with the “Sunrise Premium” part of its .sucks launch strategy, if only in name.

The pricing page of the company’s web site no longer makes any reference to Sunrise Premium, the controversial, trademark-heavy list of .sucks domains that would cost over $2,000 a year to register and renew.

Instead, there are two new categories of names: Registry Premium and Market Premium.

Registry Premium appears to be what it was previously just calling “Premium” — individually priced high-value domains such as divorce.sucks and life.sucks. That’s in tune with standard registry practice.

The new Market Premium category appears to be the replacement for Sunrise Premium. The web site describes it like this:

In General Availability, dotSucks has created a list of domains called Market Premium names. These are names that the market over time have designated as having a high value.

Previously, Vox Pop CEO John Berard told DI and other reporters that the Sunrise Premium list had been compiled from names registered or blocked in previous sunrise periods in other TLDs.

It was characterized as an additional protection against cybersquatting, but intellectual property interests saw it as a shakedown.

It’s not obvious from the updated Vox Pop web site whether Market Premium is a ground-up rethink of the Sunrise Premium concept, or is merely an empty re-branding.

The name “Sunrise Premium” was confusing, given that such domains are not actually available during the formal sunrise period. Also, the name inextricably suggested that it was a list of trademarks.

Market Premium names are priced exactly the same as Sunrise Premium — that is, $1,999 at the registry level, with a suggested retail price of $2,499.

Market Premium names will also not be eligible for the discounted “Block” service but will “likely” be eligible for the Consumer Subsidy program. That’s no change from the policies governing the Sunrise Premium incarnation.

The registry web site now also states that purchasers of the Block service, which carries a $149 registry fee, will be able to unblock their domains if they wish to actively use them, but doing so will convert the domain into a $1,999 Market Premium name.

Defensive blocking could therefore have the eventual effect of stuffing the Market Premium list with trademarks anyway (assuming any trademark holders with blocks wish to activate their .sucks names, which seems unlikely).

I’ve put in a request for clarification about Market Premium with the registry and will provide updates when I get them.

Other updates on the .sucks price list include a removal of the $9.95 suggested retail price for Consumer Subsidy names.

Consumer Subsidy names are supposedly going to be run by a third party consumer advocacy group from Everything.sucks, but that group has not been identified by Vox Pop yet.

The fact that the registry seemingly had no deal in place but already knew the price suggested to many that Everything.sucks would just be another shell company managed by Vox Pop owner Momentous. Berard reportedly denied this publicly at the INTA 2015 conference last week.

The Vox Pop web site now states “dotSucks is hopeful that this will bring the individual consumer price below 10 dollars.”

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.sucks and ICANN not invited to Congressional hearing on .sucks and ICANN

Kevin Murphy, May 8, 2015, Domain Policy

The witness list in next week’s US Congressional hearing into .sucks and ICANN accountability does not feature .sucks or ICANN.

The eight witnesses are largely drawn from outspoken critics of both ICANN and Vox Populi, either companies or trade associations and lobby groups. It’s stacked heavily in favor of intellectual property interests.

The hearing is titled “Stakeholder Perspectives on ICANN: The .sucks Domain and Essential Steps to Guarantee Trust and Accountability in the Internet’s Operation”.

With hindsight, the “Stakeholder Perspectives” bit gives away the fact that the judiciary subcommittee holding the hearing is more concerned with listening to ICANN’s critics than ICANN itself.

Mei-lan Stark, a senior intellectual property lawyer from Fox and 2014 president of the International Trademark Association, tops the list.

A critic of the new gTLD program, in 2011 Stark told Congress that the first round of new gTLDs would cost Fox “conservatively” $12 million in defensive registration fees.

It will be interesting to see if any Congresspeople confront Stark about that claim, which appeared like a gross overstatement even at the time.

One company that has been enthusiastically embracing new gTLDs — as an applicant, registry, defensive and non-defensive registrant — is Amazon, which has VP of global public policy Paul Misener on the panel.

Amazon has beef with ICANN for siding with the Governmental Advisory Committee over the battle for .amazon, which Amazon has been banned from obtaining, so it’s difficult to see the company as an overly friendly witness.

Next up is John Horton, president of LegitScript, the company that certifies legitimate online pharmacies and backs the .pharmacy new gTLD.

LegitScript is in favor of greater regulation of the domain name industry in order to make it easier to shut down potentially dangerous web sites (though opponents say it’s more often more interested in protecting Big Pharma’s profit margins). This month it called for a ban on Whois privacy for e-commerce sites.

Steve Metalitz, counsel for the Coalition for Online Accountability (a lobbyist for the movie and music industries) and six-term president of the ICANN Intellectual Property Constituency, is also on the list.

Jonathan Zuck, president of ACT The App Association (aka the Association for Competitive Technology, backed by Verisign and other tech firms) is on the list.

NetChoice director Steve DelBianco is also showing up again. He’s an ICANN hearing mainstay and I gather with this appearance he’ll be getting the final stamp on his Rayburn Building Starbucks loyalty card. That means a free latte, which is always nice.

Internet Commerce Association counsel Phil Corwin is a surprise invitee. ICA represents big domainers and is not a natural ally of the IP side of the house.

Bill Woodcock, executive director of Packet Clearing House, rounds off the list. PCH might not have instant name recognition but it provides Anycast DNS infrastructure services for scores of ccTLDs and gTLDs.

The committee hearing will take place at 10am local time next Wednesday.

A second hearing, entitled “Stakeholder Perspectives on the IANA Transition” will be held four hours later by a subcommittee of the House Energy & Commerce committee. The witnesses for that one have not yet been announced.

It’s going to be a busy day for ICANN bods on Capitol Hill.

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Congress to put .sucks on trial

Kevin Murphy, May 6, 2015, Domain Policy

The US Congress is to hold a hearing to look into the .sucks gTLD and ICANN accountability.

A hearing entitled “Stakeholder Perspectives on ICANN: The .sucks Domain and Essential Steps to Guarantee Trust and Accountability in the Internet’s Operation” has been scheduled by the House Subcommittee on Courts, Intellectual Property, and the Internet

It will take place in Washington DC next Wednesday, May 13.

The list of witnesses does not yet appear to have been published.

I would guess we’d be looking at, at the very least, somebody senior from ICANN, somebody senior from .sucks registry Vox Populi, and an intellectual property lawyer.

It was ICANN’s Intellectual Property Constituency that complained about .sucks’ sunrise policies and fees, causing ICANN to refer the matter to US and Canadian trade regulators.

The title of the House hearing suggests that the .sucks controversy will be inextricably tied to the broader issue of ICANN accountability, which is currently undergoing a significant review as ICANN seeks to split permanently from US government oversight.

That’s not great optics for ICANN; I’m sure the organization would rather not have its performance judged on what is quite an unusual edge case emerging from the new gTLD program.

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Dot-brand gTLD guilty of domain name hijacking

Kevin Murphy, May 6, 2015, Domain Policy

Fashion retailer Mango, which owns its own dot-brand gTLD, has been found guilty of Reverse Domain Name Hijacking after allegedly doctoring evidence in a .uk cybersquatting case.

The company, which runs .mango, lost a Nominet Dispute Resolution Service complaint against New Zealand-based domain investor Garth Piesse over mango.co.uk and mango.uk.

It’s only the sixth RDNH finding in 13 years of DRS history.

Mango tried to buy the domain using a pseudonym and, when Piesse asked for “six figures”, filed the DRS instead.

Piesse claimed in what appears to have been a well-argued defense that the person attempting to buy the domain on Mango’s behalf did not identify Mango as the would-be buyer.

Further, he claimed that Mango deliberately tried to hide this fact from the DRS panel by scrubbing its negotiator’s email address from evidence it submitted.

While DRS panelist Tim Brown did not agree that this omission alone was enough to find RNDH, he agreed that Mango did not have “entirely clean hands”. He ruled:

The sequence of events in the present case appears to show that the Complainant attempted to buy from the Respondent. When these negotiations failed the Complainant started proceedings under the DRS. As I have noted, the Complainant has relied on bare assertion and has provided a paucity of evidence to support its arguments.

Even a cursory reading of the Policy, Procedure and extensive guidance on Nominet’s website would quickly show that a matter concerning a clearly generic, dictionary term would require a higher standard of argument and evidence than is perhaps common. That the Complainant has failed to come anywhere close to providing sufficient argument or evidence is, in my view, strongly indicative that the Complainant pursued this dispute in frustration at the Respondent’s unwillingness to sell for a price it was willing to pay, rather than because of the merits of its position in terms of the Policy’s requirements.

I conclude that the Complainant brought a speculative complaint in bad faith in an attempt to deprive the Respondent of the Domain Names. I therefore determine that the Complainant has engaged in Reverse Domain Name Hijacking.

Spain-based Mango has owned its trademarks for well over a decade, and Piesse only got his hands on the domains in question in 2013 and 2014.

Piesse, who owns about 18,000 domains, was able to show that Mango the brand is unheard of in New Zealand and that he has a track record of buying fruit-based .uk domain names.

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