What You Need to Know About .Sucks Domain Names

Over the past two years, more than 500 new top-level domains (TLDs, or thewords to the right of the dot in a domain name, such as .com or .edu) like.attorney, .consulting, .menu, and even .rocks have launched. But none hasgarnered the attention and concern of the business community as much as .sucks,a TLD launching this year and being billed by its registry (the appropriatelynamed company Vox Populi) as a place where consumers can find their voice.

While several large organizations like Google and even celebrities likeTaylor Swift and Oprah have taken pre-emptive steps to protect their brand bypreregistering for their domains, criticism of the .sucks TLD has remainedstrong. Former U.S. Senator Jay Rockefeller called the .sucks TLD offering“little more than a predatory shakedown scheme.” Amidst mounting pressure fromlarge corporations within its Intellectual Property Constituency, the InternetCorporation for Assigned Names and Numbers (ICANN), which originally approved.sucks, even asked the U.S. Federal Trade Commission (FTC) for a review of thelegality of the TLD, which ultimately offered up an array of precautionaryrecommendations to ensure better IP protection.

The Controversy

The main reason for concern is the so-called “predatory, exploitative andcoercive” pricing scheme that has been put in place for businesses andindividuals to acquire a .sucks domain name.

Prior to the .sucks TLD opening up registration to the general public on June21, Vox Populi is hosting a sunrise period, during which trademark owners canacquire their marks’ .sucks domain names in order to preempt anyone else doingso later. Normally, registrations for other domains during this type of periodhave carried a premium of about $300 each, with annual renewal at a lower cost.However, sunrise pricing for a .sucks domain name comes with a much heftier feeof $2,499 (which actually is down from an initially stated $25,000) per year.

After the sunrise period, anyone can purchase a .sucks domain name for $249per year, though some popular domain names like divorce.sucks or life.sucks willbe designated “Registry Premium” and will have individualized pricing whileother domain names like certain popular trademarks will be designated “MarketPremium” and priced at $2,499 per year. Also at that time, organizations canchoose to purchase a block on the registration of .sucks domain names notdesignated Registry Premium or Market Premium for $199 per year.

Simply, what this means is that the most popular trademarks will never beeligible for blocking and will never decrease in price… to the trademark owner.However, later this year, Vox Populi plans to sell registrations for unclaimedMarket Premium .sucks domain names to non-corporate individual consumers at ahighly subsidized rate. This plan is meant to further incentivize trademarkowners to pay the higher rate to acquire their name prior to this period. VoxPopuli has stated that those individuals purchasing trademarked .sucks domainnames at a subsidized rate this fall will be required to redirect the domainname to a discussion forum on that mark maintained by Vox Populi. It iscurrently unclear how this forum will be moderated and what Vox Populi will dowith such domains after they expire and if they can ever go back on a premiumlist or be sold again.

What should my organization do?

Alongside your marketing and legal teams, you should assess the risk ofregistering versus not registering your .sucks domain name of choice while (1)considering the potential negative ramifications of a third-party registering itand (2) weighing that against participation in a registration process that couldencourage similar offensive TLD sales in the future. Additionally, this would bean opportune time to develop an ongoing domain risk assessment and acquisitionstrategy. Currently, your six options with regard to registering a .sucks domainname are to:

• register your trademark during the sunrise period, running through June 19, for a $2,499 fee;
• register your domain name during general availability, starting on June 21, for a $249 fee if the domain you want is not designated as Registry Premium or Market Premium;
• register for a block on your domain name during general availability, starting on June 21, for a $199 fee if the domain you want is not designated as Registry Premium or Market Premium;
• register your domain name during general availability, starting on June 21, at an individual price if it is designated Registry Premium;
• register you domain name during general availability, starting on June 21, at $2,499 if it is designated Market Premium; or
• not register at all.

In weighing your business and legal risks, keep in mind that with theabundance of criticism thus far, it seems as if there is little doubt that thisissue will end up in court, pitting the trademark holder’s rights against theregistrant’s claimed right to free speech. In several cases, individualregistrants claiming a free speech right have prevailed (Lucas Nursery &Landscaping, Inc. v. Grosse; Name.Space, Inc. v. Network Solutions, Inc.).However, the courts have also treated those deemed to be “cybersquatters”(individuals or businesses who register trademarked domain names for the solepurpose of profiting from them) differently than those who register a domain tocreate a noncommercial forum for free speech (Panavision v. Toeppen).

In summary, the .sucks domain inevitably will pose numerous legal and brandmanagement challenges in the months and years to come. While some organizationsmay want to register to potentially protect their brand, others may not want toincur the substantial fees that come along with doing so or encourage theexistence of offensive TLDs such as .sucks by paying the fees. As mentionedabove, the question of whether to register your .sucks domain name should beanswered only after an individualized, careful, thoughtful analysis within yourorganization.

For more information, please contact:

Charles M.Kelley
804.775.1914
ckelley@mwcllc.com

Brad R.Newberg
703.712.5061
bnewberg@mcguirewoods.com