By James Stewart and David Kramer

Following the publication of the article titled .SUCKS: A Questionable Future?, posted on April 13, 2015, the author received an unsolicited email from John Berard, CEO of Vox Populi Registry, Ltd. (“Vox”), the registry responsible for the controversial .SUCKS gTLD, responding to the article.  In an email, Berard shares his perspective on the launch of the .SUCKS registry and the controversy that has ensued.  In particular, Berard notes:

The mission of the Vox Populi Registry is not to just sell names, but to help create a new destination, one where criticism can be heard and engaged.  And, if they arise, errors corrected.  Right now, companies don’t always get the chance to correct the record.  Heck, a lot of what shows up in search results can’t even be run to ground.

From the beginning I have said there is no need (it is certainly not mandatory) for a company to register its dotSucks domainJust be willing to engage.  In 2015 with 20 years’ experience of the Internet as a business platform, I would not have thought this to be so radical an idea.” (emphasis added)

Interestingly, from Berard’s perspective, the registry appears to be aimed at developing a platform for brands to engage with their consumers to correct errors and address criticism.  Further, Berard notes that it is neither necessary nor mandatory for a brand to register its $2500 dotSucks domain name.  Berard’s advice to brand owners is to be willing to engage consumers that obtain and operate these sites. While idealistic, Berard’s advice for brand owners may be unrealistic. In reality, individuals will soon be able to launch their own <Brand.Sucks> websites for the low price of $9.99. In some cases, these individual domain name owners may use the sites at a platform to establish a dialog between consumers and brand owners, as Berard envisions. However, in many other cases, <Brand.Sucks> sites will likely devolve into one-sided attack sites designed and intended to destroy the reputation that brands have devoted substantial resources to build.  Furthermore, with angry or disgruntled consumers controlling websites, there is no security mechanism to prevent the dissemination of false or misleading information about a brand.  Therefore, while the sites do present an opportunity for dialog, these domain names ultimately pose a high degree of risk of reputational harm for brand owners. As noted previously, once a .SUCKS website is registered, it would be difficult or impossible for a brand to gain control of a consumer-operated .sucks domain name, given the protections afforded to free speech in the UDRP and similar policies.  For these reasons, the disparity in pricing for brand owners is problematic.

Berard has been surprised by the negative attention the launch of .SUCKS has received.  In response to Berard’s statement that “[he] would not have thought this to be so radical an idea,” the author requested that Berard provide additional insight into the rationale behind what appears to be the controversial element of the .SUCKS registry for brand owners: the price. 

“The reasoning begins with the fact that we want the [domain] names brought to life…so [we] want to attract the most serious registrants.  We do not want to set prices so as to encourage speculation or find the names tucked away in a cupboard.

The premium list is of names are those the registry thinks have exceptional value; names like <> or <>.  The sunrise premium names are those the market has, over the course of time, said have value.  We have not yet finalized that one.” (emphasis added)

According to Berard, the underlying rationale of the premium pricing structure appears to be aimed at preventing registration of .SUCKS domain names by cyber squatters (and potentially, although not admittedly) brand owners, each of which would be unlikely to populate the .SUCKS domain names with content.  Thus, in an effort to attract users seeking to actively exploit the purported value of the .SUCKS domain names the primary goal of the .SUCKS premium pricing structure appears to be avoiding stockpiled, parked, and defensive .SUCKS domain names registrations. This rationalization rings hollow, however, where Vox’s pricing structure incentivizes individuals to register and use these domain names, while at the same time creating significant obstacles blocking brand owners from protecting the substantial investments they have made in their brands. 

Berard also noted that brands registered with the Trademark Clearinghouse (“TMCH”) are not the only domain names being sold at high premium prices.  Rather, domain names that Vox will charge the premium price for domain names that Vox believes have exceptional value.  In addition trademark-formative .SUCKS domain names, Vox will sell highly coveted registrations that combine generic words with the .SUCKS gTLD resulting in a domain name with communicative or expressive value at a premium price.  As shown above, examples of these domain names include <> and <>.

While Vox determines which domain names featuring generic words will be offered at a premium price, Berard carefully noted that the “Sunrise Premium” names (or .SUCKS domain names featuring a brand’s trademark) are sold at the premium price because the market has determined they have value.  Thus, it appears that Vox’s defense, in the face of accusations that the premium pricing is “predatory,” appears to be that the premium pricing structure is merely a reflection of the value that the market has deemed the brand to have.  Importantly, Berard noted that the list of brand name .SUCKS registrations that will be sold at a premium price has not yet been finalized. However, Berard’s rationalization for premium pricing structure appears to be more of a post-hoc explanation, derived as an afterthought to combat the strong backlash against the .SUCKS gTLD among brand owners and other interested parties. In fact, this reasoning does not in any way explain the discrepancy in price that can occur when two different entities (a brand owner and an individual, for example) attempt to register the same .SUCKS domain name. Ultimately, one could easily argue that domain name registries should not have the power to selectively charge certain classes of registrants exorbitant registration fees regardless of the stated purposes of such a pricing scheme. Further, the argument that the $2500 barrier to entry on the .SUCKS registry for brand owners does not change the fact that the pricing structure is skewed against such potential registrants.  It is understandable that a domain name registry seeks to encourage adoption of its gTLD, but not to the detriment of another’s valid and enforceable legal rights.

Finally, in response to ICANN’s recent request that the FTC and Canadian Office of Consumer Affairs (“OCA”) review the premium pricing structure and assess its legality, Berard commented, “As for the claims of bad faith or illegal behavior, it is my belief that we are conducting our business well within the lines of ICANN’s rules and national law.”

At this time, there have been no updates regarding developments in connection with ICANN’s request for FTC and OCA review.  However, we will continue to monitor this story and provide updates as it continues to develop.