Antitrust Law Daily Wrap Up, CONSUMER PROTECTION NEWS: ICANN seeks guidance from FTC, Canada consumer agency on “.Sucks” domain name, (Apr 13, 2015)

By Lynn Stanton,TRDaily

The Internet Corporation for Assigned Names and Numbers (ICANN) has asked the FTC and Canada’s Office of Consumer Affairs for “guidance” on whether Vox Populi Registry, Inc. is violating laws or regulations with respect to its operation of the recently launched “.sucks” generic top-level domain (gTLD), which trademark owners have alleged amounts to a “shakedown scheme.”

The Intellectual Property Constituency recently asked ICANN “to halt the rollout” of the “.sucks” gTLD “so that the community can examine the validity of Vox Populi’s recently announced plans to: (1) categorize TMCH [Trademark Clearinghouse]-registered marks as ‘premium names,’ (2) charge exorbitant sums to brand owners who seek to secure a registration in .SUCKS, and (3) conspire with an (alleged) third party to ‘subsidize’ a complaint site should brand owners fail to cooperate in Vox Populi’s shakedown scheme.”

“We recognize that there could be significant non-infringing uses of .SUCKS domain names, and the goal of preventing the launch of .SUCKS under the current predatory scheme is in no way an attempt to stifle legitimate criticism of trademark owners,” the IPC told ICANN in a March 27 letter.

“In fact, in some cases, legitimate criticism can be useful to TM owners in helping them improve their products and services and differentiating them from their competitors. However, by discouraging trademark owners from using a key RPM, we believe that the registry operator’s actions in establishing this predatory scheme are complicit in, and encourage bad faith registrations by third parties at the second level of the .SUCKS gTLD, and thus drastically increase the likelihood of trademark infringement, all for commercial gain.

As such, Vox Populi may well be liable under the Post Delegation Dispute Resolution Policy (PDDRP), may in fact be accountable under the various intermediary liability laws around the world, and may have breached its Registry Agreement with ICANN (as well as ICANN Consensus Policies) by adding additional elements (the subsidy and ‘sunrise premium’ name schemes) which materially alters the mandatory RPM in a manner which renders them detrimental to brand owners, and a new registry service in the form of its everything.sucks platform,” the ICP added.

In its April 9 letter to the FTC and Canada’s Office of Consumer Affairs, ICANN said that it might “seek remedies against Vox Populi if the registry’s actions are determined to be illegal.” However, it said that it “has limited expertise or authority to determine the legality of Vox Populi’s positions, which we believe would fall within your respective regulatory regimes.”

ICANN noted that the “sunrise” period for registrations ends May 29 and that it is “treating this as a matter of some urgency and hope[s] that [the FTC and Office of Consumer Affairs] will be able to respond, even if informally, as soon as practicable.”

Last year, then Senate Commerce, Science, and Transportation Committee Chairman John D. (Jay) Rockefeller IV (D., W.Va.) urged ICANN to reject applications to establish and operate a “.sucks” gTLD, which he said had “little or no redeeming value” and would be used mainly to elicit defensive registrations by businesses, nonprofits organizations, and individuals “to prevent seeing the phrase ‘sucks’ appended to their names on the Internet.”

News: ConsumerProtection FederalTradeCommissionNews