Update: New TLD “.sucks” Creates Further Uproar

April 20, 2015

By Clark W. Lackert, Reed Smith LLP

In our previous post last month on this hot issue, we urged ANA members to protest this new money-making scheme by ICANN which creates price gouging of brand owners and at the same time price subsidies for so-called protest sites. A new wrinkle in this debate has created additional furor, namely, ICANN would receive up to an additional $1 million for granting the registry agreement to the current registrar, Vox Populi. How was this done? The registry agreement creates a one time “registry access fee” of $100,000, and then a $1 “registry administration fee” for each of the first 900,000 domain names registered. This arrangement is truly unique and creates additional concerns about how ICANN is currently being managed.

In response to overwhelming negative community feedback to ICANN, and a strongly worded letter from the Intellectual Property Constituency (“IPC”) of ICANN, ICANN decided it needed to respond to these accusations. It directed its outside counsel to write to both the U.S. Federal Trade Commission and the Canadian Office of Consumer Affairs to determine if Vox Populi has violated any laws or regulations. It is also possible that these agencies may find ICANN itself in violation. ICANN also instructed their Chief Contract Compliance Officer, Allen Grogan, to investigate this issue further to determine if any contractual obligations have been breached. Finally, ICANN responded to the IPC in which they defended their actions but also indicated they were investigating any possible illicit activity further. They encouraged ICANN community members to share any information on the “.sucks” rollout with ICANN to determine Vox Populi’s compliance.

What is at stake here for brand owners and advertisers is not only the abusive and exploitative regime of “.sucks”, but also ICANN setting a dangerous precedent for future registry agreement rollouts, as well as the ICANN Accountability and Transitions reviews themselves. Many ICANN watchers were surprised when the ICANN management team actually took some action to review the “.sucks” situation, perhaps indicating a new willingness to at least appear to be sensitive to the comments of the users of the system. Accordingly, we again urge you to provide your further comments to ICANN on this issue, and related ones. Comments should be sent directly to the President of the ICANN Global Domains Division, Mr. Akram Atallah, at akram.atallah@icann.org. “.Sucks” is only one of numerous TLD’s that may create pressures for defensive registrations such as .xxx, .gripe, .wtf, .porn, and others still to come.

Reed Smith LLP is the ANA’s General Counsel.

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