.sucks made millions from sunrise

Vox Populi could have made over $6 million from defensive registrations during its sunrise period.
The company’s first post-sunrise zone file was published today, and according to DI PRO it contains 3,394 domains, the vast majority of which were newly added today.
If all of these names were sunrise registrations, that would add up to an almost $6.8 million windfall for the registry.
However, I don’t think that’s a completely reliable figure. I believe that not all of the names are from sunrise.
The zone file seems to have been generated after .sucks general availability kicked off at a minute after midnight UTC this morning. ICANN publishes zone files around 5am UTC but the time it collects them from registries can vary between TLDs.
Poring over Whois records, I’ve found many examples of domains in the .sucks zone that have creation dates in the early minutes and hours of GA.
Many domains that are not obvious trademarks show creation times in the first 60 seconds of GA, suggesting they were pre-orders and sold for GA prices.
It’s also probable that some sunrise names are not showing up in the zone file yet due to a lack of name servers.
According to a source talking to DI last November, Vox Pop paid “over $3 million” for the right to run .sucks at auction.
It seems to have made its money back — and then some — purely from sunrise fees.
Sunrise names are charged at $1,999 a year by the registry. In GA, most names have a recommended retail price of $250. Strings considered valuable, many of them trademarks, carry a $2,500 “Market Premium” recommended price.

Famous Four following .sucks playbook with premium pricing for brands?

New gTLD registry Famous Four Media has slapped general availability prices of $500 and up on domain names matching famous brands.
The company plans to shortly introduce eight “premium” pricing tiers, ranging from $200 a year to $10,000 a year.
The first to launch, on July 8, will be its “brand protection tier”, which will carry a $498 registry fee.
Famous Four told its registrars that the tier “will provide an additional deterrent to cyber-squatters for well-known brands ensuring that domain names in this tier will not be eligible for price promotions”.
The gTLDs .date, .faith and .review will be first to use the tiered pricing structure.
It’s not entirely clear what brands will be a part of the $498 tier, or how the registry has compiled its list, but registrars have been given the ability to ask for their clients’ trademarks to be included.
I asked Famous Four for clarification a few days ago but have not yet had a response.
While other registries, such as Donuts, used tiered pricing for GA domains, I’m only aware of one other that puts premium prices on brands: .sucks.
Vox Populi has a trademark-heavy list of .sucks domains it calls Market Premium — formerly Sunrise Premium — that carry a $1,999-a-year registry fee.
Unlike Vox Pop, Famous Four does not appear to be planning a subsidy that would make brand-match domains available at much cheaper prices to third parties.
Famous Four’s gTLDs have seen huge growth in the last month or two, largely because it’s been selling domains at a loss.
.science, for example, has over 300,000 registrations — making it the third-largest new gTLD — because Famous Four’s registry fee has been discounted to just $0.25 from May to July.
The same discount applies to .party (over 195,000 names in its zone) and .webcam (over 60,000).
Those three gTLDs account for exactly half of the over 22,000 spam attacks that used new gTLD domains in March and April, according to Architelos’ latest abuse report.
With names available at such cheap prices, it would not be surprising if cybersquatters are abusing these gTLDs as much as the spammers.
Will intellectual property owners believe a $498+ reg fee is a useful deterrent to cybersquatting?
Or will they look upon this move as “predatory”, as they did with .sucks?

Canada shrugs over .sucks

The Canadian trade regulator has sent ICANN a big old “Whatever” in response to queries about the legalities of .sucks.
The response, sent by Industry Canada’s deputy minister John Knubley yesterday, basically says if the intellectual property lobby doesn’t like .sucks it can always take its complaints to the courts.
Other than opening and closing paragraphs of pleasantries, this is all Knubley’s letter (pdf) says:

Canada’s laws provide comprehensive protections for all Canadians. Canada has intellectual property, competition, criminal law and other relevant legal frameworks in place to protect trademark owners, competitors, consumers and individuals. These frameworks are equally applicable to online activities and can provide recourse, for example, to trademark owners concerned about the use of the dotSucks domains, provided that trademark owners can demonstrate that the use of dotSucks domains infringes on a trademark. Intellectual property rights are privately held and are settled privately by the courts.

There’s not much to go on in there; it could quite easily be a template letter.
But it seems that Vox Populi Registry has been cleared to go ahead with the launch of .sucks, despite IP owner complaints, at least as far as the US and Canadian regulators are concerned.
The Federal Trade Commission was equally noncommittal in its response to ICANN two weeks ago.
Vox Populi is based in Canada. It’s still not entirely clear why the FTC was asked its opinion.
ICANN had asked both agencies for comment on .sucks’ legality after its Intellectual Property Constituency raised concerns about Vox Pop’s “predatory” pricing.
Pricing for .sucks names in sunrise starts at around $2,000.
ICANN told DI in April that it was in “fact finding” mode, trying to see if Vox Pop was in breach of any laws or its Registry Agreement.
The .sucks domain is due to hit general availability one week from now, June 19, with a suggested retail price of $250 a year.
If anything, the $250 says much more about Vox Pop’s business model than the sunrise fees, in my opinion.

Are new gTLD registries ripping off brands with unfair sunrise fees?

Forget .sucks — several less controversial new gTLD registries have come under fire from the likes of Google, Facebook and Adobe for charging sunrise fees as high as $17,000 for domains matching famous trademarks.
According to figures supplied to DI by ICANN’s Business Constituency, the domain instagram.love carries a $17,610 “Premium Name Fee” during the current sunrise period.
Instagram is of course the photo sharing service belonging to Facebook, and to the best of my knowledge not a dictionary word.
The domain facebook.love has a $8,930 fee, these figures show, while google.love costs $6,610, both in addition to sunrise fees of $350 and annual fees of $60.
The regular sunrise fee for .love comes in at $265 at some registrars.
The new gTLDs .design, .video, .wang, .wein, .rich and .top also seem to carry very high fees for brands such as Facebook, according to the BC’s numbers.
Google recently filed a public comment with ICANN which warned:

some registry operators are taking advantage of rights owners during Sunrise by charging exorbitant and extortionate Sunrise registration fees. Although such pricing policies are not strictly within the ICANN compliance mandate, they contravene the spirit of the RPMs [rights protection mechanisms], damage ICANN’s reputation, harm consumers in contravention of ICANN’s mandate to promote the public interest, and create disincentives for rights owners to take advantage of the Sunrise period

Similar comments were sent by the Intellectual Property Constituency, BC, and others.
The issue of registries charging super-high “premium” fees for trademarked names has been on the radar of the BC and the IPC since at least 2013.
It seems that in at least some cases, trademark owners are being hit with the higher fees because their marks are dictionary words that the registry has identified as premium due to their regular meaning.
For example, adobe.design is on the list of names provided by the BC, carrying a $1,175 registration fee.
But Andrew Merriam, director of business development at .design registry Top Level Design, denied that the software company is being targeted. Instead, he said “adobe” refers to the material used in architecture — its dictionary meaning.
He said: “Stucco.design, concrete.design, wood.design, granite.design (and many other materials and building styles) are all on the premium list, at varying prices. In fact, adobe.design is priced on the lower end of all these materials.”
Merriam said the registry’s premium fee for adobe.design is actually $250 and speculated that $1,175 could be the price quoted by Adobe’s brand protection registrar post-markup. It was $349 at Go Daddy, he said.
In other cases, trademarks may have found their way on to premium lists due to a lack of manual vetting by the registry, rather than nefarious targeting.
In the case of instagram.love, Evatt Merchant of .love registry Merchant Law Group told DI that Facebook can buy the name for the normal sunrise fee if it wants.
He told DI that trademark owners should contact the registry if they believe their marks have been wrongly given premium prices. He said:

While it is possible that some brand terms that are frequently googled have ended up on the premium list, valued based on their Google search frequency, there is a simple solution. During the sunrise period, brands seeking non-dictionary trademarked domain names can contact the registry so that a review of individual sunrise pricing can occur. As has already occurred, such requests will often result in the .LOVE TLD voluntarily offering to reduce their sunrise application cost to the base sunrise price and that would certainly be the case for Instagram.

ICANN’s does not regulate pricing in new gTLDs, but nevertheless the IPC and BC and their members have asked ICANN to include premium pricing of trademarked names in its upcoming review of rights protection mechanisms.

Is the Defending Internet Freedom Act pro-crime?

The Defending Internet Freedom Act of 2015, introduced to the US Congress last month, contains a provision that could be interpreted as pro-pron, pro-piracy or even just pro-crime.
The act is designed to prevent the US giving up its oversight of ICANN/IANA unless certain quite strict conditions are met.
It’s a revised version of a bill that was introduced last year but didn’t make it through the legislative process.
Like the 2014 version, it says that the US cannot sever ties with ICANN until its bylaws have been amended in various ways, including:

ICANN is prohibited from engaging in activities unrelated to ICANN’s core mission or entering into an agreement or modifying an existing agreement to impose on a registrar or registry with which ICANN conducts business any condition (such as a condition relating to the regulation of content) that is unrelated to ICANN’s core mission.

It’s the “regulation of content” bit that caught my eye.
Presumably written as a fluffy, non-controversial protection against censorship, it ignores where the real content regulation conversations are happening within the ICANN community.
It’s a constant mantra of ICANN that is “doesn’t regulate content”, but the veracity of that assertion has been chipped away relentlessly over the last several years by law enforcement, governments and intellectual property interests.
Today, ICANN’s contracts are resplendent with examples of what could be argued is content regulation.
Take .sucks, for a timely example. Its Registry Agreement with ICANN contains provisions banning pornography, cyber-bulling and parked pages.
That’s three specific types of content that must not be allowed in any web site using a .sucks domain.
It’s one of the Public Interest Commitments that were voluntarily put forward by .sucks registry Vox Populi, but they’re still enforceable contract provisions.
Using a dispute resolution process (PICDRP), ICANN would be able to levy fines against Vox Pop, or terminate its contract entirely, if it repeatedly allows porn in .sucks web sites.
This sounds quite a lot like content regulation to me.
It’s not just .sucks, of course. Other registries have PICs that regulate the content of their gTLDs.
And every contracted new gTLD registry operator has to agree to this PIC:

Registry Operator will include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from distributing malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name.

It’s convoluted, but it basically indirectly forces (via registrars) new gTLD domain registrants to, for example, agree to not infringe copyright.
The PIC is paired with a provision (3.18) of the 2013 Registrar Accreditation Agreement that requires all registrars to investigate and “take necessary and appropriate actions” in response to abuse reports within 24 hours of receipt.
Section 3.18 is essentially the RAA mechanism through which ICANN can enforce the PIC from the RA.
This is currently one of the most divisive issues in the ICANN community, as we witnessed during the recent Congressional hearings into ICANN oversight.
On the one hand, big copyright owners and online pharmacy watchdogs want ICANN to act much more ruthlessly against registrars that fail to immediately take down sites that they have identified as abusive.
On the other hand, some registrars say that they should not have to engage in regulating what content their customers publish, at least without court orders, in areas that can sometimes be amorphously grey and fuzzy.
Steve Metalitz, from a trade group that represents the movie and music industies at ICANN, told the US Congress that registrars are dismissing piracy reports without investigating them, and that “unless registrars comply in good faith, and ICANN undertakes meaningful and substantive action against those who will not, these provisions will simply languish as empty words”.
John Horton from pharmacy watchdog used the same Congressional hearing to out several registrars he said were refusing to comply with 3.18.
One Canadian registrar named in Horton’s testimony told DI that every complaint it has received from LegitScript has been about a web site that is perfectly legal in Canada.
In at least some cases, it seems that those pushing for ICANN to more stringently regulate content may have “internet freedom” as the least of their concerns.
If the Defending Internet Freedom Act becomes law in the US, perhaps it could prove a boon to registries and registrars upset with constant meddling from rights owners and others.
On the other hand, perhaps it could also prove a boon for those operating outside the law.

.sucks extends controversial sunrise, delays GA

Vox Populi has extended the pricey .sucks sunrise period for three weeks, saying trademark owners need more time to participate.
Sunrise was due to end this week, with general availability kicking off today.
But Vox Pop has extended the period to June 19, with GA starting two days later.
In an email blast to fellow attendees of the INTA 2015 intellectual property conference, the registry said it has “discovered that far too many intellectual property lawyers and company executives were unaware of the registry or the availability of its names.”
Other brands were unaware of the Trademark Clearinghouse, the email said.
“Additionally, we have seen an influx of applications in the final days and hours of our TMCH Sunrise Period,” Vox Pop said.
“We are concerned about the extent of awareness and rush, and so have decided that the responsible move is to add a bit more time to the equation by extending the TMCH Sunrise period,” it said.
The change in timings have been announced on the registry’s web site.
While it’s possible to read the move cynically — a way for Vox Pop to claw more cash from rights holders — it’s not particularly unusual.
It is not unheard of for launching TLDs to extend their sunrise periods in order to deal with late demand.
Anecdotally, trademark owners tend to delay sunrise purchasing decisions until towards the end of sunrise windows, creating the impression of growing demand and adding pressure to processing cycles.
The .sucks sunrise has come under fire for its pricing — a $1,999 registry fee that is being marked up by registrars by everything from $20 to many hundreds of dollars.

FTC slams new gTLDs but waffles over .sucks legality

The US Federal Trade Commission has made some strong criticisms of the new gTLD program but has refused to answer the question of whether .sucks is behaving illegally.
In a letter to ICANN today (pdf), FTC chair Edith Ramirez took the opportunity to ask for a bunch of changes to the program.
But she declined to reply to ICANN’s original question, which was: are Vox Populi’s launch policies and pricing illegal?
Ramirez said she “cannot comment on the existence of any pending investigations” but said “the FTC will monitor the activities of registries and other actors in this arena” and “will take action in appropriate cases”.
She goes on to make three “recommendations” about new gTLDs in general.
She wants ICANN to “encourage the best practice” of all domain registrants to prominently identify themselves on their web sites, so that consumers are not confused.
This will never happen.
Ramirez then says rights protection mechanisms should be strengthened to prevent companies like Vox Pop violating the “spirit” of the RPMs by charging such high prices.
Finally, she echoes the advice of the Governmental Advisory Committee in asking for gTLDs representing regulated industries to have much more stringent registration requirements.
ICANN is of course under no obligation to take these recommendations as anything other than the comments of a single community member.
It’s good news for .sucks — without a determination of illegal behavior ICANN presumably has no reason to act against it.
It remains to be seen what the Canadian regulator, which ICANN also contacted for guidance, will say.
UPDATE: ICANN has just released the following statement from general counsel John Jeffrey:

We want to thank Chairwoman Ramirez for her response and for the FTC’s active interest in ICANN.
We greatly appreciate the Chairwoman’s stated understanding and appreciation of the importance of the concerns ICANN had conveyed regarding the .SUCKS gTLD rollout, as well as the broader set of consumer protection issues relating to the new gTLD program that the FTC has restated in the Chairwoman’s letter.
The FTC’s comments on consumer protection issues throughout the new gTLD program have been an important part of the dialogue of the ICANN community relating to these topics.

Obama, Apple, cancer and Taylor Swift’s cat top lists of most searched-for .sucks domains

You’ve got to hand it to .sucks registry Vox Populi.
The pricing may be “exploitative” and “predatory”, as the intellectual property community believes, but damn if the the company doesn’t know how to generate headlines.
Vox Pop has just added a new ticker stream to its web site, fingering the 50 most sucky celebrities, politicians, companies, social ills and abstract concepts.
The lists have been compiled from “more than a million” searches for .sucks domains that Vox Pop has seen pass through its system, according to CEO and veteran PR man John Berard.
For some reason, TayloySwiftsCat.sucks is the most searched-for in the “Personalities” category.
I’m guessing this relates to a meme that has yet to reach my isolated, middle-aged, non-country-music-loving corner of the world.
Whatever the cat did to earn this ire, it’s presumably equivalent to what Barack Obama, Apple, cancer and just life generally has done to searchers on the .sucks web site.
Here are the lists of most-searched-for terms, as it stands on the .sucks web site right now.
Top Personalities:

• 1. TaylorSwiftsCat
• 2. JustinBeiber
• 3. KevinSpacey
• 4. Oprah
• 5. KimKardashian
• 6. KayneWest
• 7. GuyFieri
• 8. TomBrady
• 9. DonaldTrump
• 10. OneDirection

Catch Phrases:

• 1. Life
• 2. YourMomma
• 3. This
• 4. Everyone
• 5. MyJob
• 6. MyLife
• 7. Reality
• 8. YouKnowWhat
• 9. Who
• 10. College

Causes:

• 1. Cancer
• 2. Technology
• 3. Obesity
• 4. Racism
• 5. Depression
• 6. Meat
• 7. AIDS
• 8. Hate
• 9. Poverty
• 10. Government

Companies:

• 1. Apple
• 2. Google
• 3. Microsoft
• 4. Facebook
• 5. Comcast
• 6. Walmart
• 7. CocaCola
• 8. McDonalds
• 9. Sony
• 10. Amazon

Politicians:

• 1. Obama
• 2. Hillary
• 3. TedCruz
• 4. RandPaul
• 5. StephenHarper
• 6. Putin
• 7. JebBush
• 8. TonyAbbott
• 9. DavidCameron
• 10. Democrats

Make no mistake, this is a headline-generating exercise by Vox Pop.
It comes as .sucks hits 10 days left on the clock for its $1,999+-a-pop sunrise period.
The company got a shed-load of mainstream media publicity when celebrities, starting with Kevin Spacey, started registering their names in .sucks several weeks ago.
It’s looking to get more headlines now, from lazy journalists and bloggers.
This is one of the first, for which I can only apologize.

.sucks explains Sunrise Premium name change

Vox Populi Registry abandonment of the .sucks “Sunrise Premium” brand in favor of a new “Market Premium” service is just a renaming, designed to reduce confusion among trademark owners, according to the company.
As we reported Sunday, all mentions of Sunrise Premium — a list of .sucks domains that will always carry a recommended $2,499 a year fee — have been expunged from the Vox Pop web site.
They were replaced with references to Market Premium, which appeared to carry all the characteristics of Sunrise Premium albeit under a new name.
Now, CEO John Berard has confirmed to DI that the program has not changed.
Rather, the new name is an effort to distance it from the regular sunrise period, which is linked to the Trademark Clearinghouse.
The decision was made following last week’s International Trademark Association conference, Berard said:

It was an insight gained from talking to people at INTA15. The intellectual property people there asked us so many times about the sunrise premium list of names that we realized we had allowed a mis-perception to take hold. This is no and never has been a relationship between that list and the TradeMark ClearingHouse. It was surprising how many people thought we had access to the TMCH (we don’t) and merely cut-and-pasted its names.
That is why we renamed it. Now called Market Premium and more clearly presented as a set of names that over time have been viewed as valuable (because they have been registered before). Names on this list will carry a suggested price of $2,499 (yes, the same as was suggested in Sunrise). Given the list is of names that the market has decided has value, it is likely it will contain trademarks.

The change may also be an attempt to head off a contractual squabble with ICANN.
Last Friday, the ICANN Business Constituency told ICANN management that if the Sunrise Premium list had been populated by names drawn from the TMCH, that would have been a breach of the .sucks Registry Agreement.

.sucks threatens ICANN with defamation claim after “extortion” letters

Vox Populi Registry has threatened to sue ICANN for defamation and other alleged breaches of US law, over allegations of “extortion” made by two of its constituencies.
The registry’s outside law firm wrote to ICANN yesterday, saying that it has “has no interest in pursuing claims at this time” but adding:

if ICANN or any of its constituent bodies (or any directly responsible member thereof) engages in any further wrongful activity that prevents the company from fulfilling its contractual obligations and operating the .SUCKS registry as both ICANN and Vox Populi envisioned, the company will have no choice but to pursue any and all remedies available to it.

The letter follows claims by the Intellectual Property Constituency that .sucks and its $1,999 annual sunrise fees constitute a “predatory” “shakedown”, claims which ICANN has forwarded to US and Canadian trade regulators for their legal opinions.
The IPC letter was followed up by similar claims by the Business Constituency on Friday.
Vox Pop now wants these constituencies, and ICANN itself, to shut up.
“Rather than assuming cooler heads will prevail, it is time to tell ICANN to stop interfering in our ability to operate the registry,” CEO John Berard said in an email to reporters. “We are not taking legal action at this point but making it clear that we reserve the right if ICANN continues in its wrong-headed approach.”
The company denies that .sucks will encourage cybersquatting, noting that like all other gTLDs it is subject to the anti-cybersquatting UDRP and URS remedies.

it would seem that ICANN is not actually concerned about cybersquatting or any other illegal activity. Rather, ICANN appears concerned that registrations on the .SUCKS registry will be used to aggregate uncomplimentary commentary about companies and products — the very purpose for the registry that Vox Populi identified in the application it submitted to ICANN, and that ICANN approved
ICANN has disseminated defamatory statements about Vox Populi and its business practices aimed at depriving Vox Populi of the benefits of its contract with ICANN. These actions further violate the duty of good faith and fair dealing that is implied in every contract… in suggesting illegality without any basis whatsoever, your actions (and those of the ICANN IPC and ICANN BC) have given rise to defamation claims against ICANN. Vox Populi hereby demands that ICANN, including any and all of its subdivisions, cease any and all such activity immediately.

There’s bucketloads of irony here, of course.
The company says it is standing up for its future registrants’ rights to free speech, but wants its own critics gagged today.
Read the letter as a PDF here.