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.

Plural gTLDs give ICANN huge credibility risk

Can .pet and .pets co-exist peacefully on the internet? Or would they create such confusion among internet users that the whole new gTLD program would look irresponsible and foolish?
That’s the question ICANN is due to face today, as constituents line up at the public forum in Beijing to question its board of directors about the problem of plurals in new gTLDs.
The Governmental Advisory Committee, the Business Constituency, the Intellectual Property Constituency and others have all openly questioned the sanity of allowing plurals in recent days.
Right now there are 59 collisions between singular and plural gTLD applications (in English, at least, according to my analysis), involving 23 unique string pairs.
These are: .accountant(s), .auto(s), career(s), .car(s), .coupon(s), .cruise(s), .deal(s), .fan(s), .game(s), .gift(s), .home(s), .hotel(s), .kid(s), .loan(s), .market(s), .new(s), .pet(s), .photo(s), .review(s), .sport(s), .tour(s), .web(s) and .work(s).
None of these singular/plural clashes are currently in contention sets with each other, meaning there’s nothing to stop them all being delegated by ICANN. We could have a .loan alongside a .loans a year from now.
It seems to be only common sense that these clashes will cause frequent confusion. I doubt many would pass the longstanding “shouted across a crowded bar” test for URL clarity.
Would you want to register a .photo domain if you knew .photos was also available, and vice versa? If you did, wouldn’t you also want to register the .photos equivalent, just in case?
That’s one of the things ICANN’s commercial stakeholders are worried about: 23 extra TLDs means 23 extra defensive registrations for every brand they want to protect.
But there’s also the risk that gTLD registries that are successful in this application round will feel obliged to apply for the plurals of their strings in future rounds for defensive purposes.
The plurals issue also highlights shortcomings in how the new gTLD program was structured.
Why is this happening?
Unless two companies applied for the exact same strings, there are only two ways they could end up in a contention set together.
The first way was if the String Similarity Panel decided that the two strings were too visually similar to be allowed to co-exist, and that didn’t happen in the case of plurals. The panel only decided two things in the end: that I and l are confusingly similar, and that rn and m are confusingly similar.
To date, nobody except the Panel and ICANN knows what the logic behind this decision was, but it appears to be based on a very narrow (though not unreasonable) interpretation of what constitutes visual similarity.
The second way to end up in a contention set was to file a successful String Confusion Objection, or to be on the receiving end of one.
But of the 33 such objections filed, only 11 were filed against plurals, covering only six new gTLD strings in total: .pets, .tours, .webs, .games, .cars, and .kids. There was also an objection to .tvs, due to a clash with the existing ccTLD .tv.
(UPDATE: it appears that only approximately half of the String Similarity Objections filed have actually been revealed to date).
The main reason there weren’t more objections is that only existing registries and new gTLD applicants had standing to file an objection. Nobody else was allowed to.
Applicants were of course disincentivized from filing objections. Winning a String Confusion Objection doesn’t kill off your rival if you’re an applicant, it merely places both applications in a contention set.
Being in a contention set means you’re going to have to pay money to get rid of your competitor, either by negotiating some kind of private deal or by punching it out at auction.
By not filing objections, applicants in singular/plural situations risk looking like they don’t care about user confusion or are blasé about forcing defensive registrations.
(And by defensive registrations, remember here we’re not only talking about trademark owners, we’re talking about every potential future registrant in those gTLDs.)
They do have the slight excuse that they were only given a week or so to file objections after the results of the String Similarity Panel’s deliberations, delayed several times, were revealed.
There’s also the possibility that some of the apparent clashes won’t be as big of a concern in the marketplace due to, for example, registration restrictions.
What happens next?
The GAC is almost certain to issue advice about plurals in the next day or two, having brought the topic up with ICANN’s board of directors earlier this week.
The Business Constituency is also expected to make a few proposals directly to the board during the Public Forum in Beijing, Thursday afternoon local time.
The BC is likely to suggest, for example, that if one String Similarity Objection decision finds that a plural and a singular are confusingly similar, then that ruling should apply to all plural clashes, even if no objection has been filed.
It’s an audacious idea: it would certainly do the trick, but it would require some severe goal-post moving by ICANN at a time when it’s already under fire for pulling last-minute stunts on applicants.
It would also risk capturing fringe cases of strings that look plural but, in the context they are used in everyday language, are not (such as .new and .news).
Without some kind of action, however, ICANN is pretty much guaranteed to attract negative publicity.
Looking like it’s the stooge of the domain name industry, forcing regular registrants to double-buy their domains to the enrichment of registries and registrars, could look bad.

Businesses may call for more new gTLD trademark protections

It’s open season on ICANN at the moment, and as the number of letters opposing the new gTLD program flittering between Washington DC and Marina del Rey becomes confusingly voluminous many groups think they’ve found another opportunity to demand last-minute changes.
ICANN’s Business Constituency is now considering making several recommendations for “critical improvements” to protect trademark holders in the new gTLD universe.
While the recommendations are still under discussion, they could include adding the option to transfer a domain name to a brand owner after a successful Uniform Rapid Suspension complaint.
This would prove unpopular among domain investors and others as it would increase the likelihood of the untested URS being used as a replacement for the already controversial UDRP, potentially increasing the risk of reverse domain name hijacking.
The BC is also discussing whether to ask for a “permanent registry block” feature to be added the forthcoming Trademark Clearinghouse, enabling brand owners to block their trademarks from all new gTLDs for a one-time fee in much the same way as ICM Registry enabled in the .xxx sunrise.
The Coalition Against Domain Name Abuse made a similar request to ICANN last week.
The idea is unlikely to find favor because it would essentially grant trademark owners exclusivity over strings, a right not usually given to them by trademark law.
Other BC discussion topics include making the Trademark Clearinghouse permanent (instead of just running for the first 60 days of each new gTLD) and putting a firm date on the opening of the second-round application window, a popular request from brand owners.
Much like 13th-hour requests originating in the At-Large Advisory Committee, the BC’s position is likely to be substantially revised before it is submitted to ICANN officially.
While ICANN chairman Steve Crocker told .nxt this week that there are no plans to delay or rate-limit the new gTLD program, it’s less clear whether the Applicant Guidebook is still open for the kinds of substantial amendments now being discussed by the business community.
But my hunch is that, regardless of the political pressure being brought to bear on ICANN in the US, the new gTLD program is going to launch on January 12 in more or less its current form.

Businesses to object to Arab UDRP provider

ICANN’s business constituency is to object to a new Jordan-based UDRP provider, saying that no new providers should be approved until rules governing their behavior are put in place.
The BC reckons that UDRP decisions need to be more consistent and predictable, and that a good way to achieve this would be with standard accountability mechanisms.
In a draft position statement, expected to be finalized and filed with ICANN tomorrow, the BC says that it:

strongly advocates that ICANN must first implement a standard mechanism with any and all UDRP arbitration providers that defines and constrains their authority and powers, and establishes regular and standardized review by ICANN with flexible and effective means of enforcement.

Its comment is expected to be filed in response to the Arab Center for Domain Name Dispute Resolution’s request for official recognition as a UDRP provider last month.
The BC does not appear to object to the ACDR on its own merits or on the basis of its location.
The statement notes that registrars are bound by contracts setting the rules for domain registrations, but that UDRP providers can force transfers unconstrained by any ICANN guidelines or oversight.
It’s well-known that UDRP decisions from the various existing providers are currently about as predictable as flipping a coin, with panelists frequently interpreting the rules along quite different lines.
The BC seems concerned that this could be exacerbated as more UDRP providers are approved and as new TLD registries start popping up in different countries.
The draft statement notes that currently about 99% of UDRP cases are heard by WIPO and NAF, and that most gTLDs are “based in a limited number of national jurisdictions”.