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

Domain industry shrank in Q4, but as usual there’s a big BUT

The worldwide domain name count shrank in the fourth quarter, according to newly released Verisign data, but as usual the numbers were hugely impacted by big swings in just a few TLDs.

The latest Domain Name Industry Brief (pdf), which is mainly compiled from zone file counts, shows that 2020 ended with 366.3 million names, down by 4.4 million or 1.2% compared to the end of the third quarter.

It’s the free and almost-free TLDs that swung the math.

Remarkably, industry wild-card .tk actually shrank during the quarter. This is highly unusual, as the registry’s business model is based on giving out names for free, never deleting domains, and monetizing the traffic to expired or suspended names.

It saw domains down by 2.8 million names over the quarter, from 27.5 million to 24.7 million.

Another big dipper was .icu, which sells cheap (usually under $1) and appeals to speculators largely in China.

While it slipped out of the top 10 TLDs, meaning the DNIB no longer breaks out its numbers, DI’s own zone file counts show its zone decline from 5.3 million to 3.4 million during Q4, a 1.9 million decline.

Notably spammy new gTLD .top, which also costs next to nothing and is popular in China, also had a role to play. Its zone count was down by about 900,000 between September 30 and December 31.

Those three TLDs alone account for a loss of 5.6 million names, far more than the 4.4 million industry-wide quarterly drop calculated by Verisign.

The impact of .icu’s continued spiral downwards is likely to be felt in Q1 2021 also. It’s lost another 2.4 million zone file names since the start of the year.

Verisign said the the universe of ccTLD domains contracted by 1.7 million of 1% during the quarter, ending the year with 158.9 million names.

The .tk shrinkage of course more than accounts for this dip. Without it, ccTLDs would be up by 1.1 million names or 1.1%. The major, top-10 ccTLDs mostly showed six-figure growth, the DNIB reflects.

New gTLDs were down 4.2 million names or 13.8% sequentially, ending the quarter with 26 million.

In addition to the aforementioned .top and .icu, this figure appears to have been affected by six-figure losses in some of the highest-volume, lowest-priced new gTLDs, including .club, .site .work and .vip.

In the main legacy gTLDs, Verisign’s own .com grew by 1.5 million names, from 151.8 million to 150.3 million, during the quarter. Its .net was again flat at 13.4 million. Public Interest Registry’s .org gained a (rounded) 100,000 names, ending the year at 10.3 million.

The annual numbers across the industry for 2020 have better optics. The DNIB shows that domain volume was up by 4.0 million or 1.1% year over year.

That breaks down into a 6.3 million increase in .com, a 1.3 million increase across the ccTLDs, and a 3.3 million decrease in new gTLDs, not all of which can be explained away by factoring out .icu and .top.

EU cancels .eu tender after Brexit cock-up

The European Commission has been forced to cancel its search for a new .eu registry operator after apparently misunderstanding how Brexit works.

When the Commission put the .eu contract up for grabs last October, it said deal was only open to organizations based in the EU or the UK.

It seemed weird at the time, given that the UK had already officially left the EU and was just a few months away from terminating its year-long transition agreement, under which it still operated as if it were still a member.

And it turns out to have been a mistake, based on a misunderstanding of the legalities of the Brexit process. UK registries should never have been allowed to bid in the first place.

The Commission said today “the inclusion of the clause for applicants established in the United Kingdom in the Call was an error”.

It’s therefore scrapped the entire process and intends to relaunch it “in the near future”.

Only not-for-profit entities may apply.

.eu is currently managed by EURid, which is of course not barred from bidding to renew its longstanding contract.

Facebook lawsuit brings one country’s domain to a screeching halt

Bangladesh’s ccTLD registry has reportedly frozen all registrations and transfers after a cybersquatting lawsuit filed by Facebook.

According to local reports a couple weeks back, Bangladesh Telecommunications Company Ltd has implemented Draconian pre-registration roadblocks to registration, such that only exact-match domain names are available to individuals and organizations.

And Western corporate registrar CSC said today that BTCL has “implemented a temporary suspension to registration and transfer orders due to an ongoing legal matter” and is “diligently working to draft new regulations and procedures for registration orders.”

Registrants can still manage their Whois and DNS settings as normal, CSC said.

Facebook sued the registrant of the domain facebook.com.bd last November, asking for the domain to be cancelled and for $50,000 in damages, dragging BTCL into the case.

According to reports, the domain had been registered in 2008 when the registry used a largely paper-based system, but Facebook only resorted to the courts last year when the registrant listed it for sale for $6 million.

It’s a textbook case of cybersquatting, but .bd evidently does not have the mechanisms — such as UDRP — to handle such malfeasance outside of the courts.

While a Dhaka court reportedly issued an injunction against the domain in question, it’s still resolving and still listed for sale at $6 million.

ICANN purges another dormant dot-brand

The 89th unwanted dot-brand has filed with ICANN for voluntarily contract termination.

Iveco, an Italian industrial vehicle manufacturer, has told ICANN it no longer wishes to run the .iveco dot-brand.

As is the case with self-terminations more often than not, the gTLD was almost completely unused, with only the obligatory nic.example domain active.

Iveco is a big ole company, with revenue of €4.9 billion ($5.9 billion) a year, so it appears to be a case of a lack of enthusiasm rather than a lack of resources.

Former ICANN vice-chair Disspain joins Donuts

ICANN’s influential former vice-chair, Chris Disspain, has evidently become the latest former ICANN top dog to take a job at portfolio registry Donuts.

I’m told Disspain has joined the company as senior policy advisor to CEO Akram Atallah.

He recently informed rival registries of his new move, and updated his “statement of interest” profile earlier this month to reflect his connection to Donuts.

Disspain was on ICANN’s board of directors from 2011 until October last year, when he left due to term limits. For a big chunk of that tenure he also served as vice-chair, and was often one of the more engaged and vocal of the directors.

At the start of his run, he was chair of Australian ccTLD registry auDA, but he was let go controversially in 2016.

For much of Disspain’s time on the ICANN board, new boss Atallah was serving as president of ICANN’s Global Domains Division.

Ethos Capital, which recently said it is acquiring a controlling stake in Donuts, also has a few former senior ICANNers, including CEO Fadi Chehadé, among its senior executives.

Donuts acquires four more gTLDs, but allows one to be scrapped

Donuts has acquired a portfolio of four finance-related new gTLDs, according to a source familiar with the matter, but is allowing a fifth string to fall onto the scrap heap of history.

I’m told Donuts will soon take over the ICANN contracts for .markets, .forex, .broker and .trading, which were all part of the Boston Ivy stable.

But its appears that Boston Ivy couldn’t find a buyer for .spreadbetting, which describes a complex form of gambling used in sports and financial markets, and has filed with ICANN to instead terminate its Registry Agreement.

You’ll recall that earlier this month I reported that ShortDot has acquired .cfd from Boston Ivy and plans to market it as “clothing and fashion design”, rather than its originally intended purpose of “contracts for difference”.

Both .spreadbetting and .cfd were unlaunched — both represent controversial forms of financial instrument — but the ones Donuts is acquiring already have a small number of registrations and active sites.

.markets, .forex, .trading and .broker have fewer than 4,000 registered names between them and appear to retail for between $17 and $50 per year.

I’ve lost track of precisely how many gTLD contracts Donuts currently controls, what with its recent acquisitions, but I’m pretty sure it’s pushing 300.

As for Boston Ivy, it’s game over as far as being a gTLD registry is concerned. Its only other string was .nadex, and it terminated that over a year ago.

Rival wants the truth about the Afilias-Donuts deal amid “collusion” claims

Portfolio gTLD investor Domain Venture Partners wants ICANN to fully explain its decision to approve Donuts’ acquisition of Afilias, claiming the deal gives the combined company an unfair advantage in the long-running battle for the .hotel gTLD.

DVP has filed a formal Request for Reconsideration with ICANN, tearing it a new one for seemingly going out of its way to avoid its transparency obligations when it came to the December approval of the acquisition.

ICANN’s board of directors had been scheduled to discuss the mega-deal at a special meeting December 17, but instead it carried out these talks off-the-books, in such a way as to avoid bylaws rules requiring it to publish a rationale and meeting minutes.

As I noted recently, it was the second time in 2020 (after the Ethos-PIR deal) the board resorted to this tactic to avoid publicly stating why it was approving or rejecting a large M&A transaction.

DVP notes the contrast with the Ethos-PIR proposal, which endured months of public scrutiny and feedback, adding in its RfR:

Why did the ICANN Board have a Special Meeting on this topic? Why did they not publish or otherwise identify a single background fact or point of discussion from the Special Meeting? Why did they not identify a single source of evidence or advice relied upon in coming to the decision? Why have they refused to provide even the slightest hint as to anything they considered or any reason why they came to their decision? How did they vote, was there any dissent? Nobody knows, because ICANN has kept all that secret.

The company argues that all this secrecy leaves itself and other registries at a loss to predict what might happen should they be involved in future acquisitions, particularly given the allegedly anti-bylaws “discriminatory” treatment between PIR on the one hand and Afilias on the other.

DVP stops short of asking for ICANN to overturn its decision to permit the acquisition — it would be moot anyway, as the deal has already closed — but it does demand that ICANN:

Provide complete, published rationale for the Resolution of Dec. 17, 2020 to essentially approve the Afilias acquisition of Donuts, including identification of all materials relied upon by the Board and/or Staff in evaluating the transaction, publication of all communications between Board, Staff and/or outside advisors relating to the transaction, and publication of all communications regarding the transaction between ICANN on the one hand, and Afilias, Donuts and/or Ethos Capital on the other hand.

Develop, implement, publish and report results of a clear policy as to what registry combination transactions will be approved or rejected, including clearly defined criteria to be assessed — and clearly defined process to assess that criteria – as to each and every future proposed transaction.

It’s interesting that nobody has filed a Documentary Information Disclosure Policy request for this information yet.

But it’s not all just about transparency for DVP. Its big concern appears to be its application for .hotel, which is in one of the few new gTLD contention sets still not resolved almost a decade after the 2012 application round.

DVP is the Gibraltar investment vehicle that controls the 16 new gTLDs that were formerly managed by Famous Four Media and are now managed by GRS Domains (which I believe is owned by PricewaterhouseCoopers). Dot Hotel Limited is one of its application shells.

Donuts is now in possession of two competing .hotel applications — its own, which is for an open, unrestricted space gTLD, and the Afilias-owned HTLD application, which is for a restricted Community-based space.

Back in 2014, HTLD won a Community Evaluation Process, which should have enabled it to skip a potentially expensive auction with its rival bidders and go straight to contracting and delegation.

But its competing applicants, including DVP and Donuts, challenged the CPE’s legitimacy with an Independent Review Process appeal.

To cut a long story short, they lost the IRP but carried on delaying the contention set and came back with a second IRP (this one not including Donuts as a complainant), which involves claims of “hacking”, one year ago.

The contention set is currently frozen, but DVP thinks Donuts owning two applications is a problem:

Donuts now owns or controls both that Community Application, and another pending standard application in the contention set for .hotel. There is no provision in the Applicant Guidebook for applicants to own more than one application for the same gTLD string. It certainly indicates collusion among applicants within a contention set, since two of them are owned by the same master.

…

DVP is concerned that Donuts may have no intention of honoring those Community commitments, and instead intends to operate an open registry.

DVP wants ICaNN to publish a rationale for why it’s allowing Donuts to own two applications for the same TLD.

It also wants ICANN to either force Donuts to cancel its HTLD application — which would likely lead to a .hotel auction among the remaining applicants, with the winning bid flowing to either ICANN or the losing applicants — or force it to stick to its Community designation commitments after launch, which isn’t really Donuts’ usual business model.

RfRs are usually resolved by ICANN’s lawyers Board Accountability Mechanisms Committee in a matter of weeks, and are rarely successful.

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.

Verisign upgrades its cash-printing machine but warns post-pandemic “could go either way”

Verisign has named the date for its long-anticipated .com prices increases, as it reported another healthy quarter and year of growth.

The company announced that the annual wholesale fee for a .com domain is going up from $7.85 to $8.39, effective September 1. That’s in line with the 7% annual cap reinstated by the Trump administration and rubber-stamped by ICANN.

It’s the first .com price increase since 2012, when reg fee was frozen by the Obama administration’s Department of Commerce under its longstanding contract with the company.

The $0.54 price increase would mean an extra $82.5 million for Verisign’s top line, assuming the .com base remains static at today’s level of 152,883,064 domains. The reality is very probably that registrations will continue to grow, however.

Verisign is allowed to increase prices by 7% three more times under its current ICANN contract. It was allowed to take the Trump bump last year but deferred due to the coronavirus pandemic.

Registrants are able to lock-in their current renewal rates for up to 10 years before the price rise kicks in, assuming registrar fees don’t increase in the meantime.

.com is of course a fabulously successful business, and it received a pandemic-related boost last year, due to a increase in small businesses moving online due to lockdown rules, which was reflected in Verisign’s fourth-quarter and full-year results.

Verisign reported fourth-quarter net income up from $148 million to $157 million, on revenue that was up 3.1% to $320 million.

For the full year, net income was up from $612 million million to $815 million, on revenue that was up 2.7% at $1.23 billion.

Operating margin is always an metric where Verisign shines — I often get phone calls from analysts baffled as to why ICANN allows such blatant profit-taking — but it was down a tad to 65.2%, from 65.5% in 2019.

That’s probably not enough to dislodge its crown as the company with the highest operating margin of the S&P 500.

Speaking to analysts and investors last week, Verisign said it’s projecting 2021 operating margin down again, to be between 64% and 65%, because of increased investment in its infrastructure and the $4 million annual bung it’s agreed to pay ICANN.

While Verisign is only going to see one quarter of higher prices this year, it seems the majority of its increased revenue will trickle down to the bottom line.

The company expects its domain growth to be between 2.5% and 4.5% in 2021. Execs noted continuing pandemic-related uncertainty. CFO George Kilguss said:

when the pandemic subsides and things start opening it up, I think it could probably go either way either it could accelerate or it could slow a little bit. We’re just not sure how the market would react just as we were somewhat uncertain when this whole pandemic started

In other words, while coronavirus proved an unexpected boon, post-pandemic economic recovery may not necessarily be a good thing for the industry.