The Next New gTLD Just .Sucks for Brand Owners

.sucksHot on the trails of .porn and .adult, a new gTLD enters the fray next week — one that’s already giving PR departments heartburn.  The .sucks domain launches for sunrise registrations on March 30, 2015, and with it yet another potentially costly headache for brand owners.

What Is .Sucks?

The .sucks gTLD is similar to .xxx, .porn, and .adult, in that companies are rightfully concerned that their names and trademarks may be associated with domains and websites that could harm those brands or otherwise generate ill will.  Unlike those adult-themed TLDs, however, the .sucks gTLD was expressly created with this use in mind.  According to Vox Populi, the registry company behind the .sucks domain,  it is “designed to help consumers find their voices and allow companies to find value in criticism.” Indeed, Vox Populi — perhaps forgetting that “sucks” is still considered to be a pretty crude term and probably inappropriate for  most companies — is actively seeking corporate registrants, touting a .sucks domain as having “the potential to become an essential part of every organization’s customer relationship management program.”

Many Brand Owners Think It .Sucks

Needless to say, this strikes many brand owners as disingenuous at best, and flat-out extortion at worst.  To some, the extraordinary cost of a .sucks domain name during the trademark sunrise period — $2,500, renewed annually at $2,500 — is evidence enough of Vox Populi’s bad faith, with former U.S. Senator Jay Rockefeller calling it “little more than a predatory shakedown scheme” with “little or no public interest value.” To be fair to Vox Populi, its original plan had trademark sunrise registrations pinned at $25,000, so maybe we should all cut it some slack.  But then we see Vox Populi’s pricing plans for .sucks registrations post-sunrise — $249 for general registrations, $199 for a domain block, and $9.95 for qualified individual consumers — and it’s hard not to think the worst about the exponentially higher sunrise rate for trademark owners.  Vox Populi may have a legitimate interest in maximizing the availability of domain names for fair consumer criticism, but it’s difficult to see the $2,500 initial and annual fee as anything but a penalty for companies that choose to immediately remove their names from the “conversation.”

Limited Remedies

Companies are placed in a particularly difficult position due to the fact that consumers are permitted to fairly use a company name or trademark for the purpose of honest, good-faith criticism and complaints.  For this reason, .sucks domains are more likely to be resistant to legal challenge via Uniform Domain Name Dispute Resolution Policy (UDRP) or otherwise.  The UDRP, which requires that a registrant have “no rights or legitimate interest” in a domain name confusingly similar to a trademark, and that the domain name be registered and used “in bad faith,” may well be unavailable where registrants have registered and used the domain name solely for the purposes of truthful criticism and complaints concerning a company or brand.  Indeed, companies have been dealing with this very issue in the context of brandsucks.com domains since the advent of the domain name system.

High Costs, Questionable Benefits

Given the high cost, it’s difficult to recommend that any but the most famous, deep-pocketed or risk averse brand owners run out and register their brand.sucks domains during the .sucks sunrise period at $2,500 a pop annually, unless they truly believe Vox Populi’s optimistic claim that such a website could serve as a critical customer relationship management tool, or if there are strong indicators that others will try to beat them to the punch during the general availability period.  Many companies may prefer to roll the dice and seek a blocking registration for $199 as soon as general availability hits on June 1, 2015, betting that no one else will seek registration before them.  Brand owners that do wish to hedge their bets for specific should ensure that their trademarks are properly recorded in the Trademark Clearinghouse — a requirement for .sucks sunrise registrations.

Ultimately, brand owners are well advised to understand that nothing is going to prevent registration of a domain name or use of a website designed purely as a non-commercial platform for consumer complaints and criticism.  Thus, even if brand.sucks is secured by the trademark owner, a consumer still has brandreally.sucks, brandtotally.sucks, and thousands of other viable .sucks domain names at his or her disposal.  Instead of filling Vox Populi’s coffers, brand owners may prefer to spend those resources on other business functions, perhaps ensuring that their customers have no reason to believe that they, for lack of a more appropriate term, suck.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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