New Domain Extensions
There was a time when there were very few top-level domain names available online. One was pretty much restricted to using .com, .net, or .org options. In addition to this, there were very few companies allowed to act as the primary administrator for these domains. Network Solutions was the dominant domain registrar in the United States for more than a decade.
All of this changed in 2012.
In 2012, the Internet Corporation for Assigned Names and Numbers (ICANN) started allowing companies to purchase the rights to any top-level designation so long as they pony up $185,000 for the privilege. And this is the important part. Companies purchasing the top level domain rights could then sell domains based on the designation to third parties. For example, the company that paid $185,000 for .puppy could sell domains such as:
Those of us in the legal field cringed at the possibilities. Just imagine someone purchasing the TaylorSwift.adult domain and hosting to a porn site. Ms. Swift certainly did. She registered the domain earlier this year as a preventive measure to maintain her squeaky clean image.
.sucks Domain Names
Now along comes .sucks. Imagine you’ve spent years building your online brand. A competitor registers the .sucks version of your site name and publishes unsavory information. A customer searching for your business in the search engines would likely see both your primary domain and the .sucks version. Given this prospect, isn’t nearly every business compelled to purchase the .sucks version of their domain? It certainly seems so.
The question is whether the domain registrar offering .sucks is taking undue advantage of this scenario. The company claims to be promoting free speech online in the form of legitimate criticism allowed under the First Amendment. Of course, the company is also charging companies with trademarks a premium price for the right to purchase the .sucks equivalent of their trademark – $2,499.
.sucks Secondary Extortion?
Of course, the registrar isn’t the only party of interest here. One can expect enterprising capitalists to snap up .sucks URL equivalents of the domains of smaller companies at an alarming pace. Since smaller companies rarely have the financial resources to pursue lawsuits, predatory parties can register and offer to sell the smaller companies the .sucks version of their company domain with little fear of being sued.
Copyright and Trademark
Being a smart cookie, you might ask how these domains can exist in light of copyright and trademark law. Trademark law would certainly seem to prohibit the use of a business name or trademark as a domain without the consent of the owner of the mark. Copyright law might also come into play in relation to the content published on the .sucks site.
Both assertions have merit, but one has to keep in mind criticism is considered a legitimate exception to both trademark and copyright protections. No companies could ever be criticized for subpar products or services if this was not the case. “Google.sucks” is likely to contain content pointing out the various ways Google drops the ball online. While companies will undoubtedly attack such sites using copyright and trademark law claims, the outcome is unlikely to be favorable.
The rather obvious question is whether government agencies might object to the premium prices being charged for the .sucks domains? The U.S. Federal Trade Commission and Canada’s Office of Consumer Affairs have been asked to look into the matter, ironically, by ICANN. Yes, ICANN – the company that sold the .sucks top-level domain in the first place, but is now bound by contract to allow the sale of these domains to move forward.
The outcome of the agency inquiries should make for good reading. Negative determinations by each agency could potentially provide ICANN with a basis for canceling or amending the .sucks sales contract. Of course, this outcome only exists if both agencies agree the sales practice is illegal. All bets are off if there is a split decision.
Vox Populi Registry Limited is the registrar offering the .sucks domains for sale. Vox Populi translates as “voice of the people.” The company suggests it is simply providing citizens with domains for legitimate criticism of companies pursuant to free speech concepts.
However, one has to wonder why Vox Populi is registered in the Cayman Islands if it believes in accountability. According to the Financial Post, Vox is not even the primary owner of the master .sucks designation. Instead, it is a subsidiary of Ottawa-based Momentous Inc., a company offering multiple domain registration services primarily in Canada. Why Momentous is not offering the .sucks domains under its mainstream registrar services is certainly food for thought.
The potential for the FTC or OCA to put a stop to the .sucks domain sales appears remote. Keep in mind this is not a transaction between a consumer and a domain registrar. These agencies are far less likely to interject themselves into the middle of a business-to-business dispute. Even if the FTC or OCA takes such steps, one can expect Vox Populi to aggressively litigate the matter – a process that will play out for years.
Until then, the online environment will likely just “suck” for more than a few online businesses.
Richard A. Chapo, Esq.