Everything.sucks, in losing UDRPs, puts the lie to the .sucks business model

The World Intellectual Property Organization has delivered its first UDRP decision concerning a .sucks domain name, ruling that the name sanofi.sucks is in fact cybersquatting.

The three-person panel ruled that the domain was identical or confusingly similar to a trademark owned by Sanofi, a French pharmaceuticals manufacturer involved in producing vaccines for the COVID-19 virus.

That was despite the fact that the registrant, affiliated with the Everything.sucks project, argued that nobody would think a domain name ending in “.sucks” would be affiliated with the trademark owner.

That argument flies in the face of official .sucks registry marketing from Vox Populi Registry, which positions .sucks as a place for brand owners to consolidate and manage customer criticism, feedback and support.

The sanofi.sucks case is one of two UDRP losses in the last few weeks for Honey Salt, a Turks and Caicos-based company that is believed to account for over a third of all .sucks registrations.

Honey Salt has registered thousands of brand names in .sucks, linking them to a wiki site operated by Everything.sucks Inc that contains criticism of the brands concerned copied from third-party web sites such as TrustPilot and GlassDoor.

There’s evidence that Everthing.sucks and Honey Salt are affiliated or share common ownership with Vox Pop, but the registry has denied this.

In the Sanofi case, Honey Salt mounted a free speech defense, saying it was providing a platform for legitimate criticism of the company and that Sanofi was using the UDRP to silence such criticism.

Sanofi claimed that the domain had in fact been registered for commercial purposes and to unfairly suggest an official connection to the company.

But what’s interesting is how Honey Salt argues that the domain itself, regardless of the associated web site’s content, is not confusingly similar to the Sanofi mark. The WIPO panelsts wrote, with my added emphasis:

The Respondent maintains that the disputed domain name is not identical or confusingly similar to a trademark in which the Complainant has rights. According to it, the “.sucks” gTLD is not like other generic TLDs, and its pejorative nature renders the disputed domain name as a whole nonidentical and prevents confusion, and the inclusion of “.sucks” in the disputed domain name makes clear that the associated website is not affiliated with the Complainant, but instead contains criticism of it and of its business.

In other words, if you visit a .sucks domain, you automatically will assume that the site is not associated with the brand owner.

Honey Salt seems to have made an identical argument in the UDRP case of cargotec.sucks, which it also lost at the Czech Arbitration Forum last month. The panelists in that decision summarized the company’s defense like this:

The TLD at issue here, however, .sucks, is not like other generic top level domains. Its pejorative nature renders the domain name as a whole nonidentical and prevents confusion… The inclusion of “.sucks” makes abundantly clear that the website is not affiliated with Complainant and instead contain criticism of its business.

Again, this is completely contrary to the stated goal of the .sucks registry.

Vox Pop has from the outset claimed that .sucks domains are a way for brands to aggregate customer feedback and criticism in one place, using a .sucks domain controlled by the brands themselves.

That purpose goes all the way back to its 2012 ICANN new gTLD application and continues to this day on its official web site and Twitter feed, which is primarily used to goad companies undergoing media controversies into registering and using their .sucks exact-match.

Hey, @WWE, everyone gets criticized, but not everyone has the stones to own it. You? I mean, you likely already control https://t.co/qHuEXjfVn5, why not use it? What do you think, @bleedingcool? https://t.co/Yv6b9OEaFp

— DotSucks (@dotsucks) January 24, 2021

Back in 2015, Vox Pop CEO John Berard told us:

A company would be smart to register its name because of the value that consumer criticism has in improving customer loyalty, delivering good customer service, understanding new product and service possibilities… They’re spending a lot more on marketing and customer service and research. This domain can another plank in that platform

Vox Pop even owns and uses voxpopuli.sucks and dotsucks.sucks, where it hosts a little-used forum welcoming criticism from people who say the company sucks.

But Honey Salt, its largest registrant by a significant margin, is now on-record stating that .sucks domains only imply ownership by third parties and could not possibly be confused with brand-owner ownership.

If the Many Worlds interpretation of quantum mechanics is correct, there exists a corner of the multiverse in which Honey Salt and Everything.sucks are just fronts for the entities that also control Vox Pop and its top registrar, Rebel.com. In that universe, it would be trippy indeed for the registry’s own affiliates to admit its entire stated business model is bullshit.

In our universe, that particular cat, which very probably has a goatee, is still firmly in the box, however.

Speculative forays into science fiction aside, Honey Salt’s record on UDRP is now three losses versus one win. It has six more cases pending at WIPO

Brit .eu owners get another three-month stay of execution

EURid, the .eu registry, has given UK-based registrants another three months to reclaim their suspended .eu domains.

The transition period governing Brexit ended with 2020, and with it UK citizens’ right to own a .eu domain. The registry suspended 80,000 names as a result.

These domains were due to be deleted at the end of March and released for re-registration by eligible registrants next year.

But EURid has now extended that deadline to the end of June.

Anecdotally, the New Year purge caused a flood of customer support inquiries at registrars, as registrants who somehow missed EURid’s repeated warnings tried to figure out why their domains no longer resolved.

Registrants can keep a hold of their domains if they move them to a registrant with an EU address, or if they declare themselves an EU citizen living in the UK.

ShortDot adds fourth gTLD to its stable, plans March launch

Another unused new gTLD has changed hands, ending up at ShortDot, the registry best-known for high-volume .icu.

ShortDot confirmed to DI today that it has acquired .cfd from its former owner, DotCFD.

The original plan for .cfd, one of the Boston Ivy collection of investment-related new gTLD applications, was for it to represent CFDs, or “contracts for difference”, a risky type of financial instrument that has proved sufficiently controversial that they’re not even legal in the US.

Since 2012, when the string was first applied for, CFDs have come in for serious criticism from market regulators and others due to the risk of significant losses they present to retail investors.

No .cfd domains have ever been sold, and it doesn’t appear to have ever properly launched, even though it’s been in the DNS root for five years.

But ShortDot COO Kevin Kopas tells me the plan is to repurpose the domain for an entirely different market.

“When we were contemplating the purchase and subsequent marketing angle we found that the traditional meaning of a CFD in the finance world doesn’t have the most positive connotation to it,” he said.

“We’re branding .cfd for the Clothing & Fashion Design industry and will be marketing it to entrepreneurs, bloggers, vloggers and others that are on the cutting edge of the fashion industry,” he said.

If that sounds like a stretch, you’re probably right — as far as I can tell, the fashion industry has never used that acronym and creating demand there will be a tall order. We’re in “professional web” territory here.

But Kopas said that ShortDot is already working with some influencers in the space “to create some pioneer cases that will go live at launch”. It’s also planning to attend fashion industry events after pandemic travel restrictions are over.

The company is planning to launch the domain with a first-come, first-served sunrise period beginning March 10 and ending April 12. General availability is slated for April 13 with a seven day early access period.

It’s the fourth unwanted gTLD ShortDot has acquired, repurposed and relaunched.

Its biggest success to date is .icu, a low-cost domain that proved popular almost exclusively in China and currently has 2.5 million domains in its zone file (down from a peak of 6.3 million less than a year ago).

ShortDot has shifted, then lost, so many .icu domains over the last two years that you’ve really got to factor out its influence if you want to get any sensible picture of what the new gTLD industry’s growth looks like.

It also runs .bond (2,500 names in its zone today) and .cyou (with 65,000).

Eight years after asking, Israel to get its Hebrew ccTLD

Israel is likely to be awarded the Hebrew-script version of its ccTLD, at a meeting of ICANN’s board of directors next week.

ICANN is poised to approved ישראל. (the dot goes on the right, in accordance with Hebrew writing practice), which means “Israel”, on February 8.

The beneficiary will be not-for-profit ISOC-IL, which has been running .il for the last 25 years. The Latin-script version currently has just shy of 270,000 domains under management.

ISOC-IL first expressed its interest in an internationalized domain name ccTLD (pdf) in 2012, but only received final technical approval from ICANN last May.

The proposal appears to have been held up by government delays in selecting a registry operator — government approval is a requirement under ICANN’s increasingly inappropriately named IDN ccTLD “Fast Track” program, which began in 2009.

It’s debatable how much demand there is for Hebrew domains. There are fewer than 10 million speakers in the world and most are very familiar with the Latin script.

Verisign’s gTLD קום., a transliteration of .com, has fewer than 1,700 domains in its zone file today, and is on a downward trend, two years after launch. Most are registered via local registrar Domain The Net, which had planned to compete with ISOC-IL for the IDN contract.

UNR getting out of the registry business with $17 million no-reserve auctions on 23 new gTLDs

UNR, the former Uniregistry, plans to auction off its portfolio of 23 new gTLD contracts in April.

The company, owned by domain investor Frank Schilling, said on a new web site at auction.link:

In a move to completely dedicate the company and its resources to its backend registry and IP rights protection services, UNR has announced that 23 of its Top Level Domain assets will be sold in no-reserve auctions on April 28, 2021.

The TLDs will be sold individually, rather than as a package.

While they’re all no-reserve auctions, the published starting prices add up to $16,870,000. Some have minimum bids of zero, some are less than the price UNR paid ICANN for its application fee back in 2012.

Here’s a list of the TLDs, along with their starting prices.

[table id=63 /]

The prices appear to be based on the reg fee and volume of existing registrations, which range wildly from around 300 for .hiv to 159,000 for .link. The .country gTLD, aimed at country music makers and fans, currently has no starting bid listed.

The most-likely buyers of these gTLDs would be the rapidly dwindling list of fellow portfolio registries, such as Donuts and Radix.

While UNR’s exit from the registry business may be surprising — Schilling was a big fan of new gTLDs and Uniregistry applied for 54 of them, investing $69 million — it’s merely the latest stage of the business being dismantled.

Uniregistry sold its registrar and secondary market businesses to GoDaddy last year, and later sold its stake in three car-related gTLDs to business partner XYZ.com.

UNR said the April auctions will be managed over one day by Innovative Auctions, which is pretty much the de facto standard player in new gTLD auctions.

While the company says the auctions are open to “businesses and individuals”, I’m pretty sure ICANN rules forbid a gTLD being owned by individuals.

The company now plans to focus on being a pure-play back-end registry services provider, with a focus on dot-brand gTLDs, where it will continue to compete with the likes of GoDaddy, CentralNic, Donuts and Verisign.

Crackdown looms for new gTLD auction gaming

ICANN will be urged to consider taking a stronger position against companies who apply for new gTLDs simply to lose them at auction or immediately flip them to others.

A community working group, known as SubPro and tasked with developing rules for the next new gTLD round, delivered its final Final Report this week, and the one area that failed to gain a designation of “consensus” or stronger was private auctions.

In the 2012 application round, several companies applied for large portfolios of strings that look — in hindsight at least — like efforts to game the system by forcing rivals to auctions they planned to deliberately use.

Companies such as MMX made millions losing auctions during the round, some of which was reinvested in winning auctions for other TLDs.

Applicant Nu Dot Co was notable for losing every private auction it participated in, then quickly flipping its successful .web application when Verisign stepped up with a $135 million bankroll.

While it’s difficult to know the extent to which this was all planned in advance, it proved the business model — filing spurious applications for new gTLDs you have no intention of launching — could be lucrative in future rounds.

But SubPro has put forward a slew of recommendations that, should they pass the remaining hurdles of the policy development track, could bring in substantial sanctions for those applicants and registries found to be gaming the system.

The SubPro recommendations are heavily buttressed with square parentheses, indicating disputed text, and supplemented by some minority statements from members of the working group who think that private auctions should be banned outright in future application rounds.

But the headline recommendation, numbered 35.3, is this:

Applications must be submitted with a bona fide (“good faith”) intention to operate the gTLD. Applicants must affirmatively attest to a bona fide intention to operate the gTLD clause for all applications that they submit.

Far from merely providing a check-box assertion that they’re legit, which would itself be easily gamed, applicants would also find their applications scrutinized by ICANN and its external evaluators to check for signs of a lack of bona fides.

Factors used to determine shadiness could include how many applications for contested strings are applied for, how many private auctions are lost, whether the successful applicant has not launched its gTLD within two years, and whether contracts are flipped within the first year.

SubPro discussed penalties for gaming could include the loss of registry contracts, a ban from future rounds or straight-up monetary fines. But the group did not put forward any recommendations.

SubPro couldn’t seem to come to agreement on most of this. The recommendations were determined to have “strong support but significant opposition” during the group’s recent consensus call.

One strong objection came from a somewhat diverse group of SubPro participants comprising Alan Greenberg (At-Large), Christopher Wilkinson (At-Large), Elaine Pruis (Verisign), George Sadowsky (Afilias/ISOC), Jessica Hooper (Verisign), Jim Prendergast (consultant), Jorge Cancio (Swiss government, but signed in a personal capacity) and Kathryn Kleiman (non-commercial users). They said:

The recommendations in the final report are a mix of overly complex disclosures and attestations that needlessly complicate the program to allow for private auctions. And they will not work. The only way to prevent a repeat of the activity from the 2012 round is to ban private auctions

They also claimed that allowing private auctions would putter smaller, niche and community applicants at a disadvantage, and that ICANN’s reputation would be harmed if it was seen to be overseeing gaming.

The At-Large Advisory Committee also issued a strong objection to private auctions along the same lines:

We remain concerned about attempts to “game” the application process through use of private auction and share the ICANN Board’s concerns on the consequences of shuffling of funds between private auctions. The ability for a loser to apply proceeds from one private auction to fund their other private auctions only really benefits incumbent registry operators or multiple-string applicants and clearly disadvantages single-TLD/niche applicants. We believe there should be a ban on private auctions, and that by mandating ICANN only auctions, the proceeds of ICANN auction can be directed for uses in public interest

The assumption there of course is that an ICANN “last resort” auction, in which the winning bid is funneled into ICANN’s cash pile, would be spent on stuff genuinely in the public interest, rather than frittered away on secretly settling employee lawsuits or indulging in more expensive, self-important navel-gazing.

Perhaps unsurprisingly, the ICANN board of directors has indicated that it prefers the idea of last resort auctions to private auctions.

But SubPro has also made some recommendations that could potentially keep the price of last-resort bids down, completely redesigning the auction process compared to the 2012 round.

If the recommendations are implemented, applicants would have to submit bids towards the start of the application process, when they don’t even know who they’re bidding against.

After all the applications have been submitted, ICANN evaluators would group them all according to whether they’re identical or confusingly similar to each other, then inform each applicant in a contention set how many bidders — but not their identities — they’re up against.

Applicants would then have to submit a sealed bid stating the maximum price they’d be willing to pay for the gTLD in question. It would be only after “reveal day”, when ICANN publishes the applications themselves, that everyone would learn who they’re bidding against.

They’d then be able to engage in private resolutions (auctions could come into play at this point), but it would only be after contention resolution phases such as objections and Community Priority Evaluations were complete that applicants would find out who’d submitted the highest bid.

The winning bidder would pay the amount of the second-highest bid to ICANN.

The 400-page final report (pdf), along with the minority statements, will now be sent to the GNSO Council for approval, before it makes its way to the ICANN board.

Given how much work remains to be done on private auctions and other issues that I’ll get to in later coverage, it seems that a lot of the mechanics of how contention resolution will work will have to be devised by ICANN and the community during the Implementation Review Team and Operation Design Phase phases, along with at least one round of commentary on at least one edition of the next Applicant Guidebook.

The next round of new gTLDs has moved a step closer, but it’s still going to be well over a decade after the last application window before we see the next one.

Angry investor sues for 30% of new .spa gTLD

Barely had the new gTLD .spa made it into the DNS root than it got sued by a company that claims it was stiffed out of a 30% stake in the domain.

Malaysia-based Asia Spa and Wellness Promotion Council, the newly minted registry, is being sued in Hong Kong by DotPH, the company that runs the Philippines ccTLD, .ph, over an eight-year-old investment deal DotPH says is being ignored.

It’s also named as defendants .asia registry DotAsia, DotAsia subsidiary Namesphere, and several DotAsia directors.

DotPH claims in its lawsuit that its CEO, Joel Disini, got together with DotAsia CEO Edmon Chung in early 2012 to come up with a deal whereby ownership of .spa, should its application be successful, would be split three ways.

ASWPC would hold half the shares, Namesphere 20%, and DotPH the remaining 30%, according to the complaint. DotPH claims it paid $60,000 for its stake in April 2012.

Now it claims that these shares were never formally issued, and it wants the Hong Kong court to force Namesphere to hand them over and force the original three-way ownership structure originally agreed.

But it turns out that DotAsia seems to have abandoned .spa anyway. Its board of directors a year ago voted to give ASWPC “sole rights” to the gTLD, enabling it to concentrate on .asia.

Disini, who was a member of the board at the time, claims he was only emailed about the vote a day before the meeting and did not see the email until it was too late.

He told DI: “the board of dotAsia moved to give away DotPH’s 30% equity in SPA”. He’s not happy about it. He reckons .spa could easily be a $2 million-a-year business.

The suit was filed October 19. You can read it here (pdf).

I’ve yet to receive a response to my request for comment from Chung, and will of course provide an update should he get back to me.

.gay and Star Trek star troll the right to promote new gTLD

.gay registry Top Level Design has latched onto a social media trolling trend to promote the gTLD shortly after its launch.

The registry has created the web site TheProudBoys.gay, with the support of Star Trek actor and gay rights activist George Takei, as part of a broader social media effort to shame an American far-right group called The Proud Boys.

The Proud Boys is a political collective active in North America, widely regarded as far-right, neo-fascist, and sometimes a “hate group” or “white-supremacist”.

Whether it’s overtly homophobic is probably open to question — the group denies the charge — but in the US if you’re on the far right it’s usually implicit you do not support gay rights.

The Proud Boys are are probably most famous due to the first US Presidential debate last month, when Donald Trump declined to condemn the group with sufficient clarity.

After the debate, Takei suggested on Twitter that people who support gay rights post images of gay people doing gay things on social media using the hashtag #proudboys.

Sure enough, the hashtag was shortly dominated by photos of men kissing each other, or dressed in revealing leather outfits. It was really quite funny.

And then Top Level Design put up its web site on a .gay domain, which compiles some of these social media posts alongside a post condemning the Proud Boys.

The registry said it wants to “create a positive online space that celebrates this new community and galvanizes voters”, presumably referring to the imminent US Presidential election.

Takei seemed to endorse the site on Twitter, and Top Level Design suggested he had endorsed it.

I hear The Proud Boys are quite unhappy with me. Oops! Well, I’ve started to collect some of the fabulous posts from our #ProudBoys campaign, working my friends at dotgay. Check out the first carousel of images at https://t.co/WQTRcMWccg

— George Takei (@GeorgeTakei) October 5, 2020

While I find this all very funny, I have to wonder whether it’s strictly within .gay’s stated goals.

Top Level Design has said that it won’t allow bullying in its TLD.

I assumed that meant that if somebody used a .gay domain to “out” somebody not gay or not ready to come out, the domain would be suspended.

In this case the domain appears to be being used to imply plainly straight people are gay, which just feels wrong to me.

Fight over closed generics ends in stalemate

Closed generic gTLDs could be a thing in the next application round. Or they might not. Even after four years, ICANN’s greatest policy-making minds can’t agree.

The New gTLDs Subsequent Procedures working group (SubPro) delivered its draft final policy recommendations last week, and the most glaring lack of consensus concerned closed generics.

A closed generic is a dictionary-word gTLD, not matching the applicant’s trademark, that is nevertheless treated as if it were a dot-brand, where the registry is the only eligible registrant.

It’s basically a way for companies to vacuum up the strings most relevant to their businesses, keeping them out of the hands of competitors.

There were 186 attempts to apply for closed generics in 2012 — L’Oreal applied for TLDs such as .beauty, .makeup and .hair with the clear expectation of registry-exclusive registrations, for example

But ICANN moved the goalposts in 2013 following advice from its Governmental Advisory Committee, asking these applicants to either withdraw or amend their applications. It finally banned the concept in 2015, and punted the policy question to SubPro.

But SubPro, made up of a diverse spectrum of volunteers, was unable to reach a consensus on whether closed generics should be allowed and under what circumstances. It’s the one glaring hole in its final report.

The working group does appear to have taken on board the same GAC advice as ICANN did seven years ago, however, which presents its own set of problems. Back in 2013, GAC advice was often written in such a way as to be deliberately vague and borderline unimplementable.

In this case, the GAC had told ICANN to ban closed generics unless there was a “a public interest goal”. What to make of this advice appears to have been a stumbling block for SubPro. What the hell is the “public interest” anyway?

Working group members were split into three camps: those that believed closed generics should be banned outright, those who believed that should be permitted without limitation, and those who said they should be allowed but tightly regulated.

Three different groups from SubPro submitted proposals for how closed generics should be handled.

The most straightforward, penned by consultant Kurt Pritz and industry lawyers Marc Trachtenberg and Mike Rodenbaugh, and entitled The Case for Delegating Closed Generics (pdf) basically says that closed generics encourage innovation and should be permitted without limitation.

This trio argues that there are no adequate, workable definitions of either “generic” or “public interest”, and that closed generics are likely to cause more good than harm.

They raise the example of .book, which was applied for by Amazon as a closed generic and eventually contracted as an open gTLD.

Many of us were thrilled when Amazon applied for .book. Participation by Amazon validated the whole program and the world’s largest book seller was well disposed to use the platform for innovation. Yet, we decided to get in the way of that. What harm was avoided by cancelling the incalculable benefit staring us right in the face?

Coincidentally, Amazon signed its .book registry agreement exactly five years ago today and has done precisely nothing with it. There’s not even a launch plan. It looks, to all intents and purposes, warehoused.

It goes without saying that if closed generics are allowed by ICANN, it will substantially increase the number of potential new gTLD applicants in the next round and therefore the amount of work available for consultants and lawyers.

The second proposal (pdf), submitted by recently independent policy consultant Jeff Neuman of JJN Solutions, envisages allowing closed generics, but with only with heavy end-user (not registrant) involvement.

This idea would see a few layers of oversight, including a “governance council” of end users for each closed generic, and seems to be designed to avoid big companies harming competition in their industries.

The third proposal (pdf), written by Alan Greenberg, Kathy Kleiman, George Sadowsky and Greg Shatan, would create a new class of gTLDs called “Public Interest Closed Generic gTLDs” or “PICGS”.

This is basically the non-profit option.

PICGS would be very similar to the “Community” gTLDs present since the 2012 round. In this case, the applicant would have to be a non-profit entity and it would have to have a “critical mass” of support from others in the area of interest represented by the string.

The model would basically rule out the likes of L’Oreal’s .makeup and Amazon’s .book, but would allow, off the top of my head, something like .relief being run by the likes of the Red Cross, Oxfam and UNICEF.

Because the working group could not coalesce behind any of these proposals, it’s perhaps an area where public comment could have the most impact.

The SubPro draft final report is out for public comment now until September 30.

After it’s given final approval, it will go to the GNSO Council and then the ICANN board before finally becoming policy.

ICANN washes its hands of Amazon controversy

ICANN has declined to get involved in the seemingly endless spat between Amazon and the governments representing the Amazonia region of South American.

CEO Göran Marby has written to the head of the Amazon Cooperation Treaty Organization to say that if ACTO still has beef with Amazon after the recent delegation of .amazon, it needs to take it up with Amazon.

ACTO failed to stop ICANN from awarding Amazon its dot-brand gTLD after eight years of controversy, with ICANN usually acting as a mediator in attempts to resolve ACTO’s issues.

But Marby yesterday told Alexandra Moreira: “”With the application process concluded and the Registry Agreement in force, ICANN no longer can serve in a role of facilitating negotiation”.

She’d asked ICANN back in May, shortly before .amazon and its Japanese and Chinese translations hit the root, to bring Amazon back to the table for more talks aimed at getting ACTO more policy power over the gTLDs.

As it stands today, Amazon has some Public Interest Commitments that give ACTO’s eight members the right to block any domains they feel have cultural significance to the region.

Marby told Moreira (pdf) that it’s now up to ACTO to work with Amazon to figure out how that’s going to work in practice, but that ICANN’s not going to get involved.