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Donuts launches first “not com” ad campaign

Kevin Murphy, March 17, 2015, Domain Registries

Donuts has launched its first ad campaign, part of its plan to raise awareness about new gTLDs as a category.

It’s a digital-only video campaign, expected to run on sites including YouTube, the New York Times, Forbes, Mashable and Fast Company.

The theme is “freedom of choice”, using the slogan “Welcome to the not com revolution”.

“It’s going to be a lot of digital, a lot of online marketing, and it’s going to be about choice and the fact that this new product category represents an opportunity to grab an identity on the internet, that really reflects what it is you are and what you do,” COO Richard Tindal told DI in a recent interview.

The ad campaign going to be US-only, which chimes with what Tindal said as he laid out some of Donuts’ vision and marketing plans for 2015.

“I think that level of awareness is very low at sort of five to ten percent,” he said in the January interview. “It varies from country to country. Probably in the US it is even a little lower than other places.”

Tindal told us that Donuts is primarily concerned with marketing the “category” of new gTLDs, rather than any specific TLD.

“Our mission in 2015 is to have those people be aware of the category before they turn up at the registrar,” he said. “They are still going to get the story from the registrar, but we want them to know all about this new thing before they turn up.”

Donuts says that the new ad campaign will drive traffic to Your.domains.

That domain actually redirects to Domainr — a sparse, but quite smart, name-spinner app developed by the little-known nb.io.

That site, which appears to be monetized with affiliate links, quickly presents relevant domains based on user keywords and sends leads to a selection of registrars.

Such “smart search” is an important part of Donuts’ strategy, but one where the new gTLD industry as a whole is failing to make much of an impact at the moment.

Here in the UK, it’s pretty obvious from Go Daddy’s advertising that the market-leading registrar would sooner take the Verisign shilling and plug .com rather than risk promoting the largest expansion of inventory in its history.

Tindal said in our interview that Donuts’ aim in 2015 is to promote smart search over paid placement.

Asked whether registrars’ economic interests are aligned with new gTLD registries’, he said he’s convinced that for all the domains sold in 2014, new gTLDs have better metrics for registrars than .com. The only problem is volume.

If you look at the metrics of those .com names, under every criteria the registrar is better off selling one of ours.

The customer finds a name more quickly. It’s got more margin for the registrar, because they’re better quality names. They’re going to buy more. The problem, as you’ve just noted is of course just the volume. At the moment, there’s so much volume for them in .com that they tend to stick to that, and so we’re seeing the sort of behaviors, if you like, that are sort of clouding what we would like to see.

Awareness-raising is important, therefore, to get customers actively looking for more relevant domains, rather than being served up .com by default at registrars unwilling to take a risk on new TLDs.

Donuts’ announcement can be found here.

The full interview with Tindal, which also covers topics such as SEO and dot-brands, can be read by DI PRO subscribers here.

Could you survive a .sucks UDRP?

Kevin Murphy, March 17, 2015, Domain Policy

If you register a .sucks domain matching a brand, could you survive a subsequent UDRP complaint? Opinion is mixed.

In my view, how UDRP treats .sucks registrants will be a crucial test of Vox Populi Registry’s business model.

Vox Populi Registry clearly envisages — and is actively encouraging with its policies — genuine critics, commentators and consumer advocates to register .sucks domains that match famous trademarks.

I really like this idea. Power to the people and all that.

But will UDRP panelists agree with me and Vox Pop? Cybersquatting case law under UDRP says, very firmly: “It depends.”

Statistics generally favor mark owners

To date, there have been exactly 100 resolved UDRP complaints against domains that end in “sucks.com”.

Of those, 47 cases ended up with a full transfer of the domain to the trademark owner. Only 30 resulted in a the complaint being denied.

Another 19 cases were withdrawn or terminated; the remainder were split decisions.

So it seems, based on historical “sucks” cases, that the odds favor trademark owners.

But each case is, theoretically at least, judged on its merits. So it does not necessarily hold that most .sucks UDRP complaints will be successful.

What does WIPO say?

The World Intellectual Property Association, which administers most UDRP cases, published a set of guidelines for its panelists.

Some guidelines specifically addresses “sucks” sites, but the advice is not always clear-cut.

There are three elements to UDRP. First, the complainant must show that the domain name in question is identical or confusingly similar to its trademark.

According to WIPO, it’s the “consensus view” of UDRP panelists that adding “sucks” to a trademark at the second level does NOT stop a domain being confusiningly similar. WIPO says:

Generally, a domain name consisting of a trademark and a negative or pejorative term (such as [trademark]sucks.com) would be considered confusingly similar to the complainant’s trademark for the purpose of satisfying the standing requirement under the first element of the UDRP (with the merits of such cases typically falling to be decided under subsequent elements). Panels have recognized that inclusion of a subsidiary word to the dominant feature of a mark at issue typically does not serve to obviate confusion for purposes of the UDRP’s first element threshold requirement, and/or that there may be a particular risk of confusion among Internet users whose first language is not the language of the domain name

Some panels have disagreed with this prevailing view, however.

It remains to be seen whether moving the string “sucks” to the right of the dot would affect the outcome, but it’s established UDRP case law that the dot in a domain can be pretty much ignored when testing for similarity.

The TLD a domain uses can be taken into account if it’s relevant or disregarded if it is not, according to precedent.

The second test under UDRP is whether the registrant of the domain has legitimate rights or interests.

Panelists disagree on this point. WIPO says:

The right to criticize does not necessarily extend to registering and using a domain name that is identical or confusingly similar to the complainant’s trademark. That is especially the case if the respondent is using the trademark alone as the domain name (i.e., [trademark.tld]) as that may be understood by Internet users as impersonating the trademark owner.

That view would seem to apply specifically to the use cases Vox Pop has in mind — the registry wants critics to own [trademark].sucks domains in order to criticize the trademark owner.

In the 2003 case of natwestbanksucks.com, the WIPO panel drew on earlier precedent to find that the registrant had no rights to the domain.

Respondents’ can very well achieve their objective of criticism by adopting a domain name that is not identical or substantially similar to Complainants’ marks. Given the free nature of the media which is the Internet and the chaotic spamming that has become epidemic, it does not appear that one can be at full liberty to use someone else’s trade name or trademark by simply claiming the right to exercise a right to freedom of expression”.

In other words: you may have a right to free speech on the internet, but you do not have the right to exercise it simply by adding “sucks” to a famous trademark.

But other UDRP panelists have disagreed. WIPO says that some panelists have found:

Irrespective of whether the domain name as such connotes criticism, the respondent has a legitimate interest in using the trademark as part of the domain name of a criticism site if such use is fair and noncommercial.

The third element of UDRP is bad faith. Complainants have to show that the registrant is up to something dodgy.

Some panelists have a pretty low threshold for what constitutes bad faith. Merely having the page parked — even if you did not park it yourself — can point to bad faith, especially in “sucks” cases.

WIPO says that “tarnishment” of a trademark — such as posting porn, which is banned under Vox Pop’s AUP anyway — can be bad faith, but legitimate criticism would not usually:

While it would not normally extend to the mere posting of information about a complainant, or to the posting of genuine, non-commercial criticism regarding the trademark holder, it may extend to commercially motivated criticism by (or likely on behalf of) a competitor of such trademark holder.

So, with all that in mind, here are some tips for improving your odds of surviving a .sucks UDRP.

How to beat a .sucks UDRP

Poring over dozens of “sucks.com” decisions, it quickly becomes clear that there are certain things you should definitely do and not do if you want to keep a hold of your brand-match .sucks domain.

Given the volume of precedent, you’ll have a hard time showing that your domain is not identical or confusingly similar to the trademark in question — strike one — but there are ways to show legitimate interests and rebut claims of bad faith.

1. Respond

To show you lack legitimate interests, the complainant only needs to make a face-value argument that you do not. Then the burden of proof to show rights switches to you.

If you don’t respond to the UDRP, the panel will find you lack rights. Panelists rarely try to fight the corner of a registrant who has not responded.

That’s strike two.

2. Don’t allow your domain to be parked

If a domain is parked, UDRP panelists in “sucks.com” cases invariably find that the registrant lacks legitimate interests and has shown bad faith.

Parking is considered a commercial activity, so you won’t be able to argue convincingly that you’re exercising your right to non-commercial free speech if your domain is splashed with links to the trademark owner’s competitors.

This holds true even if the domain was automatically parked by your registrar.

Dozens (hundreds?) of UDRP cases have been lost because Go Daddy parked the newly registered domain automatically, enabling the complainant to show commercial use.

Panelists are usually happy to overlook the lack of direct bad faith action by the registrant in such cases.

Parking will usually lead to strikes two and three.

In the case of .sucks, parking is actually banned by Vox Populi’s acceptable use policies (pdf).

But the registry will only enforce this policy if it receives a complaint. I don’t know if the Registry-Registrar Agreement, which isn’t public, prohibits registrars auto-parking new domains.

3. Develop a site as soon as possible

In some “sucks.com” cases, respondents have argued that they had intended to put up a criticism site, but could not provide evidence to back up the claims.

If you register a .sucks matching a trademark, you’ll want to put up some kind of site ASAP.

In the case of kohlersucks.com, the registrant had merely framed a Better Business Bureau web page, which was found to show non-commercial criticism use.

4. Don’t offer to sell the domain

It should go without saying that offering to sell the domain to the trademark owner shows bad faith; it looks like extortion.

Panelists regularly also find that registrants give up their legitimate rights to a domain as soon as they make it available to buy.

5. Don’t make any money whatsoever

The second you start making money from a domain that matches a trademark, you’re venturing into the territory of commercial use and are much more likely to fail the WIPO test of “genuine, non-commercial criticism”.

6. Be American

Depressingly, you stand a better chance of fighting off a UDRP on free speech grounds if both the case involves US-based parties and a US-based panelist.

Panelists are more likely to draw on the US Constitution’s First Amendment and associated non-UDRP case law when determining rights or legitimate interests, when the registrant is American.

Merely registering with a US-based registrar is not enough to confer First Amendment rights to a registrant living outside of the US, according to UDRP panels.

Even though freedom of speech is a right in most of the world, in the universe of UDRP it seems the rest of us are second-class citizens compared to the yanks.

Here’s why trademark owners will think .sucks sucks

Kevin Murphy, March 13, 2015, Domain Registries

Vox Populi Registry is to launch its .sucks gTLD at the end of the month, and its plans are likely to piss off trademark owners no end.

As previously reported, the company has backpedaled on its idea of pricing its sunrise period names at $25,000 per name per year, but it’s introducing some new concepts that seem almost designed to get hackles up in the IP community.

From March 30 to May 29, any company with a trademark registered in the Trademark Clearinghouse will be able to buy their matching .sucks domains at sunrise for $2,499. That’s also the annual renewal fee.

It’s a tenth of the price previously touted, but still pretty steep even by sunrise standards.

Vox Pop isn’t doing anything particularly unusual with its sunrise, which is governed by policies closely regulated by ICANN.

But its big new idea is its “Sunrise Premium” list, a list of strings dominated by famous trademarks.

Vox Pop CEO John Berard told DI yesterday that the Sunrise Premium list has been compiled from strings registered or blocked in other TLDs’ sunrise periods.

While he declined to characterize it as a list of trademarks, he acknowledged that it will be trademark-heavy.

If your mark is on this list, you will never be able to get a .sucks domain at the regular general availability retail price of $249 a year. It will always be $2,499 a year.

Despite the name, Sunrise Premium names are only available during general availability, which begins June 1.

On the one hand, this mandatory premium pricing for the world’s most well-defended marks appears to have benefits for some trademark owners.

While Sunrise Premium names are not restricted to owners of matching marks, the $2,499 fee applies whether you’re the mark owner, a legitimate third-party registrant, or a cybersquatter.

So the high price looks like a deterrent to cybersquatting, suggesting that Vox Pop is fighting from the IP corner.

But then we discover that Sunrise Premium names will never be eligible for the .sucks “Block” service — similar to .xxx’s Sunrise B, a Block is a non-resolving registry reservation — which is expected to retail at a discounted $199 per year.

Berard said that the registry wants to encourage use.

“If you are on the Sunrise Premium list or want a premium name, those can’t be blocked,” Berard said. “It’s all part and parcel of us trying to put more power in the hands of individuals and to cultivate a commitment on behalf of the commercial world to participate in the dialogue.”

But the fact remains: if you have a track record of defensively registering your trademark, Vox Pop is essentially penalizing you with higher fees.

Feel those hackles rising yet?

Vox Pop’s stated goals are to give companies a way to manage customer feedback and individuals a way to exercise their rights to criticize.

“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,” Berard said.

“They’re spending a lot more on marketing and customer service and research. This domain can another plank in that platform,” he said. “On the other hand, we also want to make sure that these names are also accessible to individuals who have something to say.”

Companies on the Sunrise Premium list have an additional thing to worry about: the .sucks Consumer Advocate Subsidy, which will bring the price of a .sucks domain down to $9.95 per year.

The subsidy will only be available to registrants unaffiliated with the trademark-owning company, and they’ll have to direct their domains to a discussion forum platform called Everything.sucks.

Berard said Everything.sucks will be operated by a third party, but could not yet disclose the details.

The subsidy program will be available on regular and Sunrise Premium names, but not Sunrise names. It is not expected to launch until September.

It’s not yet clear how flexible and configurable the service will be.

It seems likely that if somebody wants to write a blog, say, criticizing a certain company, product, service or public figure, they will incur the usual $249 annual reg fee.

It’s not exactly “free” speech.

On the whole, the finalized policies and fees may look like they’re specifically designed to irk the IP lobby, but they do seem to be aligned with Vox Pop’s mission statement.

If you’re of the view that trademark owners should have the sole right to use the string matching their mark as a domain name, you’re likely to be unhappy with what Vox Pop is doing.

If, on the other hand, you’re an advocate of the right of every free person to stick it to The Man, you may view the policies more favorably.

Either way, it could be a money-spinner for Vox Pop.

I’m expecting .sucks to be only the third new gTLD to top 1,000 sunrise registrations (assuming .porn and .adult will be the first).

Assuming the registry’s slice of the $2,499 fee is over $2,000, the company is looking to clear in excess of $2 million in annually recurring sunrise revenue alone.

Rightside to release 20,000 two-character domains

Kevin Murphy, March 11, 2015, Domain Registries

A week from now, new gTLD registry Rightside is to release over 20,000 two-character domain names.

The releases will come across all of its delegated gTLDs, but exclude letter-letter combinations.

Only letter-number, number-letter and number-number combinations will be available, following ICANN’s partial lifting of the ban on two-character domains back in December.

Strings such as “a1″, “2b” and “69” will presumably become available.

Rightside said the domains will be sold on a first-come, first-served basis, with prices ranging from $200 to $50,000.

The registry has almost 30 delegated new gTLDs, including .auction, .software, .lawyer, .sale and .video.

If you’re interested, set your alarms for 1700 UTC on March 18. That’s when all 20,000 drop.

Two-letter domains are still reserved, pending the outcome of ICANN’s government-delayed release process.

Adware dominating popular new gTLD ranks

Kevin Murphy, March 11, 2015, Domain Registries

Afilias’ .kim has become the latest victim (beneficiary?) of adware, as robo-registrations boost the gTLD’s zone file and apparent popularity.

It’s the latest new gTLD, after .xyz and .country, to see its rankings soar after hundreds of gibberish, bulk-registered domains started being used to serve ads by potentially unwanted software.

.kim is today the 4th most-popular new gTLD, with 85 domains in the top 100,000 on the internet and 264 in the top one million.

A month ago, it had a rank of 223, with just 16 domains in the top one million.

The domain names involved — gems such as oatmealsmoke.kim, vegetableladybug.kim and tubhaircut.kim — have seen a boat-load of traffic and rocketing Alexa rank.

The reason for the boost seems to be a one-off bulk registration of about 1,000 meaningless .kim domain names in early February, which now appear to be being used to serve ads via adware.

In this chart (click to enlarge), we see .kim’s zone file growth since the start of 2015.

The spike on February 5, which represents over 1,000 names, is the date almost all of the .kim names with Alexa rank were first registered.

They all appear to be using Uniregistry as the registrar and its free privacy service to mask their Whois details.

These domains often do not resolve if you type them into your browser. They’re also using robots.txt to hide themselves from search engines.

But they’ve been leaving traces of their activity elsewhere on the web, strongly suggesting their involvement in adware campaigns.

It seems that the current (ab?)use of .kim domains is merely the latest in a series of possibly linked campaigns.

I noted in January that gibberish .country domains — at the time priced at just $1 at Uniregistry — were suddenly taking over from .xyz in the popularity charts.

The following three charts, captured from DI PRO’s TLD Health Check, show how the three TLDs’ Alexa popularity rose and fell during what I suspect were related adware campaigns..

First, .xyz, which was the first new gTLD to show evidence of having robo-registrations used in adware campaigns, saw its popularity spike at the end of 2014 and start of 2015:

Next, Minds + Machines’ .country, which saw its zone file spike by 1,500 names around January 6, starts to see its Alexa-ranked total rocket almost immediately.

.country peaks around February 9, just a few days after the .kim robo-registrations were made.

Finally, as .country’s use declines, .kim takes over. Its popularity has been growing day by day since around February 13.

I think what we’re looking at here is one shadowy outfit cycling through bulk-registered, throwaway domain names to serve ads via unwanted adware programs.

It seems possible that domains are retired when they become sufficiently blocked by security countermeasures, and other domains in other TLDs are then brought online to take over.

None of this necessarily reflects badly on any of the new gTLDs in question, or even new gTLDs as a whole, of course.

For starters, I’ve reason to believe that TLDs such as .eu and .biz have previously been targeted by the same people.

The “attacks”, for want of a better word, are only really noticeable because the new gTLDs being targeted are young and still quite small.

It takes much longer to build up genuine popularity for a newly launched web site than it does to merely redirect exist captive traffic to a newly registered domain.

What it may mean, however, is that .kim and .country are going to be in for statistically significant junk drops about a year from now, when the first-year registrations expire.

For .kim, 1,000 names is about 14% of its current zone file. For .country, it’s more like a quarter.

The daily-updated list of new gTLD domains with Alexa rank can be explored by DI PRO subscribers here. The charts in this post were all captured from the respective TLD’s page on TLD Health Check.