ihwlaw

Since ICANN – the organization that allocates domain names — approved an initiative in 2011 to add thousands of new “generic” Top-Level Domains (gTLD), over 635 new gTLDs have been registered.  Many of these are creative efforts to expand topical diversity on the internet, but few have received as much notoriety as .sucks.

A gTLD is the portion of an internet address to the right of the dot, such as .com, .net or .org.  Under ICANN’s plan, third parties may register and administer new gTLD’s, such as .bank for banking, .law for the legal industry, and .golf for golfing, leaving it within the purview of the gTLD registrar to enable creation of domain names using the gTLD.  A partial list of some of the more recently approved gTLD’s can be found here.

The delegated registrar of .sucks, Momentus Inc., is charging $2,499 for pre-public registration of .sucks strings, which first requires a trademark to be registered with the Trademark Clearinghouse.  Beginning June 1, 2015, registrations of .sucks domain names are generally available to the public — at lower pricing — with an open registration process so that anyone can register a new .sucks domain without restriction.  (There are restrictions for registration of some gTLD’s but none for .sucks after May 31.) This enables trolls and trashers to gobble up .sucks strings bearing company names and brands alike.

The .sucks gTLD promises to ruffle the feathers of many a brand owner because trademark law, which protects the use of marks in domain names, may not apply to .sucks strings because one purpose of this gTLD is to enable public comment regarding brands.  Under existing law including the Lanham Act and its anti-cybersquatting provisions, courts have traditionally protected trademark owners from parties that register a domain utilizing a mark in a manner that is confusingly similar to, or dilutive of, the mark or which evinces a bad faith intent to profit from a mark the registrant does not own.  But registrants of .sucks URLs may be able to muster arguments that countervail these protections based on First Amendment law and the view that the .sucks string on its face is intended for brand criticism and thus ipso facto cannot cause confusion or be used in bad faith.  One need only consider the success of consumer darling Yelp in defending against manifold attacks on its platform to infer how .sucks registrants may be able to utilize the law in their favor to stop businesses from attacking web forums that are exclusively dedicated to trashing business brands.

Though many consider the purveying of .sucks domains to be little more than legalized extortion, businesses that value their names, brands and trademarks would do well to consider registering .sucks domains to prevent opportunists from trading-off valuable brand names to their detriment.  And some may even consider turning lemons into lemonade by using a .sucks domain to assist in their own customer relations program.

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