“Halt perverted .sucks shakedown now!” demands IPC

Intellectual property interests have asked ICANN to put an immediate stop to the roll-out of the .sucks new gTLD.
A letter to Global Domains Division president Akram Atallah, sent by the Intellectual Property Constituency this evening and seen by DI, calls the registry’s plans, which include an “exorbitant” $2,500 sunrise fee, a “shakedown scheme”.
It’s also emerged that Vox Populi, the .sucks registry, has agreed to pay ICANN up to a million dollars in mysterious fees that apply to no other new gTLD registry.
The IPC letter states.

the Intellectual Property Constituency is formally asking ICANN to halt the rollout of the .SUCKS new gTLD operated by Vox Populi Registry Inc. (“Vox Populi”), so that the community can examine the validity of Vox Populi’s recently announced plans to: (1) to categorize TMCH-registered marks as “premium names,” (2) charge exorbitant sums to brand owners who seek to secure a registration in .SUCKS, and (3) conspire with an (alleged) third party to “subsidize” a complaint site should brand owners fail to cooperate in Vox Populi’s shakedown scheme.

Vox Populi intends to take .sucks to sunrise on Monday, so the IPC wants ICANN to take immediate action.
The high price of registration, the IPC believes, will discourage trademark owners from using the sunrise period to defensively register their marks.
Meanwhile, the registry’s plan to make the domains available for $10 under a “Consumer Advocate Subsidy”, will encourage cybersquatting, the IPC says.

by discouraging trademark owners from using a key RPM, we believe that the registry operator’s actions in establishing this predatory scheme are complicit in, and encourage bad faith registrations by third parties at the second level of the .SUCKS gTLD, and thus drastically increase the likelihood of trademark infringement, all for commercial gain

The letter goes on to say that Vox Populi may be in violation of its registry contract and the Post-Delegation Dispute Resolution Policy, which was created to prevent registries turning a blind eye to mass cybersquatting.
There’s also a vague threat of legal action for contributory trademark infringement.
The IPC has particular beef with the registry’s Sunrise Premium program. This is a list of strings — mostly trademarks — that have been defensively registered in earlier sunrise periods.
Sunrise Premium names will always cost $2,500, even after sunrise, when registered by the trademark owner.
The IPC says:

Vox Populi is targeting and punishing brand owners who have availed themselves of the RPMs or shown that they are susceptible to purchasing defensive registrations… This will have a chilling effect on TMCH registrations and consequently discredit all of the New gTLD Program RPMs in the eyes of brand owners, whose buy-in and adoption of new gTLDs is widely acknowledged to be critical to the success of the new gTLD program.

Finally, and perhaps more disturbingly, the IPC has discovered that the .sucks registry agreement calls for Vox Populi to pay ICANN up to a million dollars in extra fees.
As well as the usual $25,000-a-year fee and $0.25 per-transaction fee, .sucks has already paid ICANN a $100,000 “registry access fee” and has promised to pay a $1 “registry administration fee” per transaction on its first 900,000 domains.
Its contract states:

Registry Operator shall also pay ICANN (i) a one-time fixed registry access fee of US$100,000 as of the Effective Date of this Agreement, and (ii) a registry administration fee of US$1.00 for each of the first 900,000 Transactions. For the avoidance of doubt, the registry administration fee shall not be subject to the limitations of the Transaction Threshold.

This makes ICANN look absolutely terrible.
What the hell is a “registry access fee”? What’s a “registry administration fee”?
One guess would be that it’s ICANN stocking up its legal defense fund, suspecting the kerfuffle .sucks is going to cause.
But by taking the Vox Pop shilling, ICANN has opened itself up to accusations that it’s complicit in the “shakedown”.
If it does not block .sucks (which was probably the most likely outcome even without mysterious fees) the IPC and other .sucks critics will be able to point to the $1 million as a “bribe”.
The behavior is not without precedent, however.
There’s a reason ICM Registry pays ICANN a $2 fee for every .xxx registration, rather than the much lower fees charged to other gTLD registries.
Read the IPC letter here.

Governments go on a kill-crazy rampage with new two-letter domain veto

ICANN has confirmed to new gTLD registries that governments now get to unilaterally block two-letter domains that match their home ccTLDs.
The organization has essentially given nations a veto — already enthusiastically exercised — over domains including il.army, it.pizza and fr.domains.
I’m not making this up. The Italian government has banned anyone from registering it.pizza.
Governments have already started invoking their new-found right, with dozens of domains already heading to the block-list.
The veto was revealed in a letter from Akram Atallah, president of ICANN’s Global Domains Division, to the Registries Stakeholder Group yesterday.
It has not been published yet, but I’ve had its contents confirmed by a few registries and I understand the RySG mailing list is buzzing about it today.
In it, Atallah says that two-letter strings that do not receive objections from the government with the matching ccTLD will be released within seven to 10 days of comment periods closing.
However, strings that do receive objections will remain blocked.

For labels that receive objections from relevant governments, the labels will remain reserved. Should the registry operator and the objecting government reach an agreement regarding the release of the label, the registry operator shall notify ICANN that it has reached agreement, and ICANN will approve the release request and issue an authorization. The label will no longer be a reserved name.
…
until there is Consensus Policy or a Board Resolution on this matter, ICANN can only follow the process outlined above. ICANN encourages further community discussions to resolve this matter, and until then, negotiation between the objector and the registry operator as a means to release this class of labels from the reserved names list.

New gTLD registries believe, as they explained in a recent letter (pdf), that neither ccTLD operators nor their governments own these two-character strings. They believe ICANN is creating new rights.
So far, two-character domains have been banned by default in all new gTLDs. It was kind of a placeholder policy in order to get the new gTLD program launched a few years ago.
ICANN did enable the release of letter-number, number-letter and number-number strings in December, but made letter-letter combinations subject to government comments.
Following a GAC outcry last month, the comment periods were extended.
All comments were to be “fully considered”, but it wasn’t clear what that meant until the RySG asked and Atallah replied yesterday.
Some governments are already using the comment period to exercise their new veto.
The European Commission, for example, has objected to eu.credit, eu.creditcard, eu.auction, eu.casino, eu.bingo and eu.law.
The basis for the EU objections is in most of the cases: “The new TLD at hand corresponds to a regulated market in many EU countries. Its release might generate confusion and possible abuses at the end users level.”
It’s a wonder that the EU doesn’t seem to care about those strings in its own .eu ccTLD, where they’re all registered by people that I suspect may lack credentials.
Does credit.eu look to you like the registrant is a credentialed member of a regulated financial services industry? If he was, he may be able to afford a better web site.
The Commission also objects to eu.community, because:

the terms “EU Community” or “European Community” are widely used

That is true, which makes me wonder why the EU is allowing community.eu to languish parked at Sedo. You’d have to ask the Commission.
Israel, meanwhile, objects to il.casino, il.bingo, il.law, il.chat, il.bible, il.country, il.airforce, il.navy and il.army
The Vietnamese ccTLD registry has objected to several vn. domains, but it’s not clear to me whether it has veto authority.
Italy has objected to it.pizza, it.bingo and it.casino. Really, Italy? You’re objecting to “it.pizza”?
Côte d’Ivoire objects to all ci. domains.
Spain objects to es.casino, es.bingo and es.abogado.
Again, I invite you to check out bingo.es and casino.es and make a judgement as to whether the registrants are licensed gambling establishments.
Taiwan has vetoed the release of .tw in all city gTLDs (such as tw.london, tw.berlin etc) over a “concern that the release of above-mentioned domain names may cause the degradation of statehood”.
France has objected to “fr” in .archi, .army, .airforce, .bank, .bet, .bio, .casino, .cloud, .dentist, .doctor, .domains, .finance, .lawyer, .navy and .sarl.
Again again, several of these domains are just parked if you flip the words to the other side of the dot.
As a reminder, ICANN CEO Fadi Chehade said recently:

Come on guys, do not apply rules that you’re not using today to these new folks simply because it’s easy, because you can come and raise flags here at ICANN. Let’s be fair.

Does Chehade agree with Donuts on .doctor?

Should governments have the right to force business-limiting restrictions on new gTLD operators, even though they don’t have the same rules in their own ccTLDs?
ICANN CEO Fadi Chehade evidently believes the answer to that question is “No”, but it’s what ICANN is controversially imposing on Donuts and two other .doctor applicants anyway.
Donuts recently filed a Request for Reconsideration appeal with ICANN over its decision to make the .doctor gTLD restricted to medical professionals only.
It was an unprecedented “Public Interest Commitment” demanded by ICANN staff in order to keep the Governmental Advisory Committee happy.
The GAC has been asking for almost two years for so-called “Category 1” gTLD strings — which could be seen to represent highly regulated sectors such as law or medicine — to see a commensurate amount of regulation from ICANN.
Governments wanted, for example, registrants to show professional credentials before being able to register a name.
In the vast majority of instances, ICANN creatively reinterpreted this advice to require registrants to merely assert that they possess such credentials.
These rules were put in registries’ contracts via PICs.
But for some reason in February the organization told Donuts that .doctor domains must be “ascribed exclusively to legitimate medical practitioners.”
According to Donuts, this came out of the blue, is completely unnecessary, an example of ICANN staff making up policy on the spot.
Donuts wants to be able to to sell .doctor names to doctors of any discipline, not just medical doctors. It also wants people to be able to use the names creatively, such as “computer.doctor” or “skateboard.doctor”.
What makes ICANN’s decision especially confusing is that CEO Fadi Chehade had the previous day passionately leaped to the defense of new gTLD registries in their fight against unnecessary GAC-imposed red tape.
The following video, in which Chehade uses .dentist as an example of a string that should not be subject to even more oversight, was taken February 11 at a Q&A with the Domain Name Assocation.
The New gTLD Program Committee meeting that authorized ICANN staff to add the new PIC took place February 12, the very next day. Chehade did not attend.

It’s quite remarkable how in line with registries Chehade seems to be.
It cuts to the heart of what many believe is wrong with the GAC — that governments demand of ICANN policies that they haven’t even bothered to implement in their own countries, just because it’s much easier to lean on ICANN than to pass regulations at home.
Here’s the entire text of his answer. He’s describing conversations he’d had with GAC members earlier in the week.

They’re saying stop all the Category 1 TLDs. Stop them. Freeze them!
And we said: Why do we need to freeze them? What’s the issue?
They said: It’s going to harm consumers.
How will it harm consumers? We started having a debate.
It turns out that they’re worried that if somebody got fadi.casino or fadi.dentist, to pick one of Statton’s [Statton Hammock, VP at Rightside, who was present], that this person is not a dentist and will pluck your ear instead of your teeth. How do you make sure they’re a dentist?
So I asked the European Commission: How do you make sure dentist.eu is a dentist?
They said: We don’t. They just get it.
I said: Okay, so why do these guys [new gTLD registries] have to do anything different?
And they said: The new gTLD program should be better or a model…
I said: Come on guys, do not apply rules that you’re not using today to these new folks simply because it’s easy, because you can come and raise flags here at ICANN. Let’s be fair. How do you do it at EU?
“Well, if somebody reports that fadi.dentist.eu is not a dentist, we remove them.”
Statton said: We do the same thing. It’s in our PICs. If fadi.dentist is not, and somebody reports them…
They said: But we can’t call compliance.
You can call compliance. Anyone can call compliance. Call us and we’ll follow up. With Statton, with the registrar.

What we have here is Chehade making a passionate case for the domain name industry’s right to sell medical-themed domain names without undue regulation — using many of the same arguments that Donuts is using in its Reconsideration appeal — then failing to show up for a board meeting the next day when that specific issue was addressed.
It’s impossible to know whether the NGPC would have reached a different decision had Chehade been at the February 12 meeting, because no formal vote was taken.
Rather, the committee merely passed along its “sense” that ICANN staff should carrying on what it was doing with regards implementing GAC advice on Category 1 strings.
While Chehade is but one voice on the NGPC, as CEO he is in charge of the ICANN staff, so one would imagine the decision to add the unprecedented new PIC to the .doctor contract falls into his area of responsibility.
That makes it all the more baffling that Donuts, and the other .doctor new gTLD applicants, are faced with this unique demand to restrict their registrant base to one subset of potential customers.

All eyes on Donuts as first new gTLD renewal figures roll in

Donuts is about to give the world the clearest picture yet of the ongoing demand for new gTLD domain names.
The company has taken the unprecedented decision to disclose its renewal figures on a pretty much live basis.
COO Richard Tindal has been blogging renewal stats for .bike, .clothing, .guru, .ventures, .holdings, .plumbing and .singles for the last few days.
Those were the first seven of its gTLDs to hit general availability.
To Saturday, the renewal status of 6,352 names in these gTLDs was known and the renewal rate was 85.3%.
However, that rate is boosted by the relatively high proportion of the names that were registered during sunrise periods.
Donuts said that “two thirds” of the 6,352 reported domains were registered after sunrise.
That doesn’t make a whole lot of sense to me, given that Donuts has previously put the total number of sunrise regs across the seven TLDs at just 1,404, which would work out at about 22%, not 33%.
On Friday, the company had said that the status of 4,534 names was known and the renewal rate was 91.6%.
If you deduct the Friday numbers from the Saturday numbers, you get to 1,265 renewals and 553 drops, a renewal rate of almost 69.6% for that particular day.
That number, which is a few percentage points off what a gTLD such as .com regularly reports, could of course fluctuate.
The full-year renewal rate, which would factor out much of the domainer activity, of course won’t be known for another year.
Donuts said it expects its renewal rate to drop to the mid-70s in its next daily report, expected today, which will cover an additional 22,910 domains.
The company’s decision to blog its numbers comes a day or two after we reported that ICANN is only budgeting for renewals of 50%.
The 14.6% of names not renewed works out to about 933 domains.
“We believe most of those names will be re-registered by another party within the next 35 days,” Tindal wrote.
As they were all registered in the early days of GA, one might expect them to be of a reasonably high quality.
While GA began at the end of January 2014, renewal rates are not known until the Auto-Renew Grace Period, which can be as long as 45 days, has expired.

ICANN slashes new gTLD revenues by 57%, forecasts renewals at 25% to 50%

ICANN has dramatically reduced the amount of revenue it expects to see from new gTLDs in its fiscal 2015.
According to a draft 2016 budget published this morning, the organization now reckons it will get just $300,000 from new gTLD registry transaction fees in the year ending June 30, 2015.
That’s down 75% from the $1.2 million predicted by its FY 2015 budget, which was approved in December.
Transaction fees are paid on new registrations, transfers and renewals, but only by gTLDs with over 50,000 billable transactions per year.
Today, only 14 of the 522 delegated new gTLDs have added more than 50,000 names. ICANN says that only 17 registries are currently paying transaction fees.
It’s not only the transaction fees where ICANN has scaled back its expectations, however.
The organization also expects its fixed new gTLD registry fees — the $6,250 each registry must pay per quarter regardless of volume — to come in way below targets.
The new budget anticipates $12.7 million from fixed registry fees in FY15, down 24% from the $16.7 million in its adopted FY15 budget.
This is presumably due to larger than expected numbers of would-be registries either withdrawing or dragging their feet in the path to delegation.
Registrar transaction fees are now anticipated at $1.1 million, compared to $2 million and $3.2 million predicted by the adopted and draft FY15 budgets respectively.
Taking all three revenue sources together, ICANN now expects new gTLDs to contribute just $14.1 million to its fiscal 2015 revenue, down 29% from the $19.8 million forecast in its adopted FY15 budget.
That’s down 57% from the $32.7 million in the original draft budget for the period.
The current budget assumes 15 million new gTLD registrations in the 12-month period, revised down from the 33 million domains predicted in its draft FY15 budget a year ago.
With just a few months left until the end of the fiscal year, there are currently fewer than 4.5 million domains in published new gTLD zone files.
ICANN plainly no longer expects new gTLDs to get anywhere close to 15 million domains.
Renewals expected to be weak, weak, weak
The organization is taking a conservative view about renewals for 2016.
The 2016 budget expects renewals at just 50% for regular gTLDs and 25% for registries — presumably ICANN has .xyz in mind — that gave away domains for free at launch.
That 50% is both ICANN’s “best” and “high” estimate. Its “low” estimate is 35% for non-free domains.
Obviously, 50% is a very low renewal number for any registry (70%+ is the norm). Even شبكة. (.shabaka) told us recently that 55% of its registrants are renewing before their domains expire.
Conversely, 25% may be a very optimistic number for free domains (when Afilias gave away free .info names a decade ago, almost all of them dropped rather than being renewed).
For fiscal 2016, which begins July 1, 2015, ICANN expects new gTLD revenue to be $24.1 million — about a quarter off its original plan for 2015.
That breaks down as $19.9 million from registry fixed fees, $2 million from registry transaction fees, and $2.3 million from registrar transaction fees.
ICANN said it is is assuming that it will start the year with 602 registries and end it with 945.
The proposed FY16 budget, now open for comment, can be found here.
For comparison purposes, the adopted FY15 budget is here (pdf) and the draft FY15 budget is here (pdf).

Donuts launches first “not com” ad campaign

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?

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

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

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

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.