Hi,

Timothe, I wholeheartedly agree with you on respect of the process, and debating the issues within that framework. It’s the only way any group within ICANN can have an equal (or as close to equal as actually or practically possible) footing with others to advocate its interests. However, as far as I can tell, the intent (or spirit) of ICANN policies regarding protection of brand names within the domain name space isn’t being circumvented.

Those policies are meant to prevent registrants from registering domain names in bad faith attempting to confuse consumers on the legitimacy of the information/services on websites to which the domain names point to. It’s supposed to be just as much about protecting the consumers as it is about protecting the trademark holders. Does the pricing of registrations in the sunrise period promote registration for illicit use? If so, how? And aren’t there other policies that assist in mitigating that risk? 

Also note that apart from the sunrise period, there is also a claims period (a minimum of 90 days that may NOT overlap with the sunrise period), in which someone registering a domain name listed in the trademark clearinghouse (TMCH) will receive a “Trademark Notice”. This provides additional protection to trademark holders from those intending to use them in bad faith — again, the spirit of the ICANN policies intended to protect TMs.

Setting up a pricing policy that discourages corps from registering domain names under a certain TLD to encourage its use for other purposes under a subsidised model exclusive to registrants who “may not be a corporation or in any way affiliated with the corporation the domain is referencing” (from the products description of the Consumer Advocate Subsidized package at https://www.nic.sucks/products) not only guarantees that this product is compliant with ICANN policies protecting trademarks. It can also serve as a means to prevent competing businesses from registering domain names under .sucks to slander its market rivals. Again…, this would help in maintaining the .sucks TLD for its intended use.

Going over the products listed by the registry, I’m finding it hard to believe that the intent or result in its policies are meant to circumvent intellectual property rights interests as set up by ICANN. Trademark holders can even register names under the “Domain Block” package at a 25% discount to the standard pricing of $249. It seems to me that .sucks is trying to comply with ICANN policies and simultaneously provide a unique gTLD meant to give registrants a space to directly critique branded services and products.

This is just my first take at this and I should probably take a closer look, but as a non-commercial registrant, I am more inclined to encourage this sort of model rather than condemn it.

I would also be interested in learning more about everything.sucks.

Thanks.

Amr

On Mar 30, 2015, at 1:32 PM, Timothe Litt <[log in to unmask]> wrote:

> On 29-Mar-15 23:38, Nicolas Adam wrote:
>> I don't think the consumer advocate subsidized program has anything to
>> do with the Sunrise Premium, and I do not think they should be thought
>> of as linked. Nor do I think this is and end run around the spirit of
>> the TMCH.
> Then we disagree.  I don't think that framing this as a theoretical
> exercise in
> economics (or law) changes the core issue.
> 
> Does NCUC/NCSG stand for adherence to process and to the spirit of
> the ICANN rules only when they work to advance our positions/causes?
> If so, we can hardly claim the high ground.
> 
> It's basic ethics: Is it OK to watch someone one doesn't like, even
> a criminal, get mugged or bullied?  Or does one render assistance to
> him as a victim, and separately prosecute his criminal behavior? 
> To have a civil society, it has to be the latter.
> 
> I don't think ICANN should be in the trademark clearing house business.
> I don't think ICANN should (or can) be an international court for IP issues.
> I don't like the gross imbalance between corporate (commercial or
> non-profit) and individual/non-corporate rights in our current rules. 
> I don't like how some interests apply them against "the little guy".  I
> don't like the decision to monetize the DNS.  Remember, "they're just
> names."  And I certainly don't like the lack of service or accountability
> that I've received from some of the targets of .SUCKS & its presumed
> clients.
> 
> But those rules are what we have.  If they're selectively enforced, or not
> enforced, or interpreted to allow bullying, order will be imposed from
> without - and we won't like what corporate lobbyists, governments and
> courts come up with.  Nor will we like the diminished reputation and
> influence of ICANN, in which we have a stake.  If we don't like the rules,
> we can work to change them.  It's convenient to ignore them in this
> case.  But it would be wrong.
> 
> .SUCKS is taking a registry of names and processes intended to protect
> IP owners, and using them to attack those owners.  It isn't even
> compensating the TMCH for the list of names - which some would argue
> is also IP.  Turning "protect" into "attack" certainly violates the spirit
> in which these rules were set up.
> 
> It's important to resist the temptation to viscerally drift to "free
> speech good, IP interests bad" thinking.  The IPC document, on the
> whole, makes a good case for their position.  It will create difficulties
> for friends and enemies alike if the precedent is established that
> inverting the spirit of our rules and bullying others is acceptable.
> 
> It irks me to have to defend the rights of groups that won't give me the
> time of day.  And to defend rules that I strongly disagree with.
> But it's no different from defending the rights of those engaged in
> political
> speech that we abhor.  I will fight them on the issues, but defend their
> right
> to be heard and treated equally under the rules of society. 
> 
> It is not in our interest to stand with .SUCKS on this matter.  As a
> voice for
> (a) civil society, we should be standing with (at least most of) the IPC
> position.
> 
> P.S. It occurs to me to wonder how we'd react if someone registered .TRUTH
> (or .exhale?) as a corporate defense domain and used the analogous rules:
> discounts for corporations, high prices for consumer advocates, blacklisting
> ("price discriminating") potential registrants based on their credit
> record and
> scraping social media & WhoIS, establishing as "premium names" every
> negative word or phrase in the dictionary as well as the names of every
> consumer-oriented group, etc...
> 
> Timothe Litt
> ACM Distinguished Engineer
> --------------------------
> This communication may not represent the ACM or my employer's views,
> if any, on the matters discussed. 
> 
> On 29-Mar-15 23:38, Nicolas Adam wrote:
>> I don't think the consumer advocate subsidized program has anything to
>> do with the Sunrise Premium, and I do not think they should be thought
>> of as linked. Nor do I think this is and end run around the spirit of
>> the TMCH.
>> <br>
>> <br>.SUCKS wants to sell domains to people who will criticize. From the
>> perspective of .sucks, everything can and should be criticized.
>> Everything can suck. That's their market. That's the name innovation
>> which they bring. Whether it will have an innovative impact on the
>> criticizing habit of people, whether it will help create innovative
>> criticism, is anyone's guess but shouldn't necessarily be ruled out.
>> <br>
>> <br>From the perspective of .sucks, it wants to be the center of the
>> criticism universe.
>> <br>
>> <br>The spirit of TMCH periods is to enable some brand owners to
>> preemptively buy a name on which they have a trademark if they think
>> that that TM'ed name will eventually be used in an illicit manner with
>> regard TM laws. There is an astonishingly high number of possible TLDs
>> that can potentially be created. TM owners that have names on the TMCH
>> cannot possibly buy TM'ed names of interest in all of those, so it is
>> left to them to decide on each TLD if they will spend resources up front
>> rather then as a remedy after the fact of a TM infringement. TMCH
>> recognizes that some TM'ed may be more abused then others but does not
>> to my knowledge say that the listed names ought to be reserved all the
>> time because infringement is inevitable. It is a skewed policy towards
>> IP owners, but not that skewed.
>> <br>
>> <br>In the case of .sucks, it is clear to see that potential for TM
>> infringements are minimal, and the TMCH period will be exploited to
>> other ends than to the spirit for which it is presumably set for. Hence,
>> putting a high premium on the names does something very much in the
>> spirit of the TMCH. If the TLD would be .REAL, then we might have a
>> different analysis on whether a very high price for TMCH listed names is
>> indeed an end run on the TMCH spirit. With regard .sucks, Intellectual
>> Property interests are not in the business of protecting against
>> possible infringements, they do not want the string to thrive. The high
>> price is legitimate. The right way to do it would be to prevent TM owner
>> to buy a domain or mandate the domains be used for real criticism, but
>> the existence of TCMH by itself renders is the business decision.
>> <br>
>> <br>Now, the subsidy seems to me to be something related to a development
>> strategy of the TLD, and if there is something wrong with it, it has
>> more to do with competition than extortion of brand owners.
>> <br>
>> <br>The registry sets its price list on regular domains. It wants to sell
>> them as high as possible, as is customary for anything, yet it wants the
>> TLD to trive and be populated because that will bring in new clients. It
>> has to look at the pricing of other names in different TLDs to price it
>> accordingly, and then adjust for the specific value its own semantic
>> brings.
>> <br>
>> <br>I may be wrong here (I don't know what the market prices for regular
>> domains are in all the TLDs)&nbsp; but the subsidy seems to be an end run
>> around affordability, if anything. It is a business model innovation
>> that lets .sucks charge high because someone pays more for the
>> first-mover benefit of being a de facto .sucks powerhouse, which will
>> enable that someone to bundle services to recoup the subsidy.
>> <br>
>> <br>Let us presume for a second that there are no competition concerns
>> and
>> that everything.sucks is really paying .SUCKS the subsidy amount, that
>> the price for regular domains outside the subsidy program are market
>> prices, and that everything.sucks isn't related to .SUCKS. In theory,
>> everything.sucks is paying large sums because it wants to be the de
>> facto dominant force for criticism and harness the power large network
>> of criticizing customers. It offers the registry lots of money, and
>> offers the registrant a service for under market value. It furthermore
>> offers the registrant some bundled service, a platform. Maybe in time it
>> would even offer an umbrella of sorts against law suits as a by product
>> of it's ToS, who knows? Because it took a hit in paying a large share of
>> the (presumably) market price for domains, it may even wants to sell
>> publicity that would reach their clients in specials ways, or (more
>> probably and which raises concerns of it's own) may want to control the
>> publicity that will be shown to its customers web visitors.
>> <br>
>> <br>If the regular price of 250$ is higher than the market price, then
>> there
>> might be concerns that .sucks and everything.sucks are stifling
>> competition in order to extract a monopoly rent.
>> <br>
>> <br>On the flip side presumably another company may want to compete with
>> everything.sucks and be willing to subsidize more than everything.sucks,
>> and on the face of that fact, if .SUCKS treat this newcomer like
>> everything.sucks, than there shouldn't be any competition problems,
>> although there are concerns that they might not. I don't know where I
>> stand, I'm thinking about this for the first time as I write. I'm
>> somewhat of a believer that infinite domains would take care of these
>> concerns but in the context of ICANN's bottlenecking new TLDs, I'm not
>> sure what I think on this one.
>> <br>
>> <br>In any case .sucks agreement with everything.sucks is a business
>> model
>> innovation as far as I can tell. If everything.sucks is related to
>> .SUCKS, it raises very real legitimate competition concerns. And in
>> fact, we should probably be on the lookout because this does not bode
>> well for the development of a competitive and affordable names industry
>> which we, and ICANN, should want to institute. Bundling is bad for
>> affordability and good for margins unless barriers to entry are low
>> throughout the value chain.
>> <br>
>> <br>But if there are concerns to be had, it isn't IMO the high price
>> on TMCH
>> listed names.
>> <br>
>> <br>Nicolas
>> <br>
>> <br>On 2015-03-29 8:52 PM, Timothe Litt wrote:
>> <br><blockquote type=cite>On 28-Mar-15 11:44, Milton L Mueller wrote:
>> <br><blockquote type=cite>I’m on .sucks side on this one.
>> <br>In effect, the .sucks domain seems to be engaged in a legitimate form
>> <br>of price discrimination between brand owners who want to suppress
>> <br>critical expression about
>> <br>&nbsp; their brands and people who actually want to use the domain
>> for its
>> <br>intended purpose.
>> <br>Extortion means that one is threatened with violence or some other
>> <br>form of illegal harm if one doesn’t pay up. The idea that paying a
>> <br>high fee to preempt the
>> <br>&nbsp; mere possibility that someone might register and use a critical
>> <br>domain such as brand.sucks is not extortion.
>> <br></blockquote>This is an issue where I can't agree with Milton's
>> position.
>> <br>
>> <br>Technically, what .SUCKS is doing is probably not extortion -
>> unless the
>> <br>goal is defamation of trademark and brand holders.&nbsp; "Pay me
>> or I will
>> <br>subsidize(1) platforms for defaming you" might be held to be illegal
>> <br>harm.&nbsp; But I'll defer to to qualified legal professionals on
>> that.
>> <br>
>> <br>It is, however, distasteful and exploitive.&nbsp; Taken as a whole
>> - and I've
>> <br>read the sites policies as well as the complaint, this is not merely
>> <br>"legitimate price discrimination".&nbsp;&nbsp; It is an attack on
>> IP holders and
>> <br>on ICANN rules designed to protect them.
>> <br>
>> <br>Whether or not you approve of the "sunrise" policies established by
>> <br>ICANN, this is clearly an end-run around them.&nbsp; The policies were
>> <br>intended to make it reasonably easy for trademark holders to protect
>> <br>their rights(2).&nbsp; The policies of .SUCKS are clearly designed
>> to make it
>> <br>difficult and expensive. Both during the sunrise period, and through
>> <br>general availability.
>> <br>
>> <br>We should worry about any action that constitutes an attempt to evade
>> <br>the spirit of those policies.&nbsp; We may not feel particularly
>> solicitous
>> <br>of trademark holders.&nbsp; But the next policy whose spirit is
>> eviscerated
>> <br>may be one closer to our hearts.
>> <br>
>> <br>As should be well known in this forum, I strongly believe that there
>> <br>SHOULD be TL domains where names are understood not to be trademarks,
>> <br>and are not subject to the abuses that trademark holders can and do
>> <br>inflict on others.&nbsp; Especially (hear my chorus coming?)
>> individual,
>> <br>non-corporate domain name holders.&nbsp; However, these should be
>> established
>> <br>within the spirit of ICANN policies, changing them if
>> necessary.&nbsp; And
>> <br>with respect for the legitimate concerns of IP holders.&nbsp; If
>> .SUCKS were
>> <br>attempting to create such a domain, it would have my support.
>> <br>
>> <br>What's happening here is not something that I approve of.&nbsp;
>> The ends do
>> <br>not justify the means.&nbsp; And if we want our legitimate
>> concerns to be
>> <br>addressed and policies that support them enforced, we ought not to be
>> <br>supporting the means being used here.
>> <br>
>> <br>Encouraging this sort of use of the domain name allocation system is a
>> <br>mistake.&nbsp; Any system works when everyone plays by the spirit
>> of the
>> <br>rules - even those we disagree with and lobby to change.&nbsp;
>> Anarchy is no
>> <br>one's friend and does not advance anyone's cause.
>> <br>
>> <br>Frankly, I'm much more inclined to write a letter in support of
>> the IPC
>> <br>complaint than to support .SUCKS.&nbsp; Who knows?&nbsp; Perhaps
>> the IPC would
>> <br>reciprocate with some respect for our concerns.
>> <br>
>> <br>(1) the .SUCKS model subsidizes anyone not affiliated with a trademark
>> <br>or brand who registers a critical site with a specific
>> provider.&nbsp; The
>> <br>.SUCKS website https://www.nic.sucks/products uses the words
>> <br>"subsidized" and "subsidies".
>> <br>
>> <br>(2) I think: too easy.&nbsp; But that's not an excuse for
>> flaunting the
>> <br>spirit of the established rules.&nbsp; Two wrongs do not make a right.
>> <br>
>> <br>Timothe Litt
>> <br>ACM Distinguished Engineer
>> <br>--------------------------
>> <br>This communication may not represent the ACM or my employer's views,
>> <br>if any, on the matters discussed.
>> <br>
>> <br>
>> <br>
>> <br></blockquote></body>
>> </html>
>> </html>
> 
>