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.

.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.

 From the perspective of .sucks, it wants to be the center of the 
criticism universe.

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.

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.

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.

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.

I may be wrong here (I don't know what the market prices for regular 
domains are in all the TLDs)  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.

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.

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.

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.

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.

But if there are concerns to be had, it isn't IMO the high price on TMCH 
listed names.

Nicolas

On 2015-03-29 8:52 PM, Timothe Litt wrote:
> On 28-Mar-15 11:44, Milton L Mueller wrote:
>> I’m on .sucks side on this one.
>> In effect, the .sucks domain seems to be engaged in a legitimate form
>> of price discrimination between brand owners who want to suppress
>> critical expression about
>>   their brands and people who actually want to use the domain for its
>> intended purpose.
>> Extortion means that one is threatened with violence or some other
>> form of illegal harm if one doesn’t pay up. The idea that paying a
>> high fee to preempt the
>>   mere possibility that someone might register and use a critical
>> domain such as brand.sucks is not extortion.
> This is an issue where I can't agree with Milton's position.
>
> Technically, what .SUCKS is doing is probably not extortion - unless the
> goal is defamation of trademark and brand holders.  "Pay me or I will
> subsidize(1) platforms for defaming you" might be held to be illegal
> harm.  But I'll defer to to qualified legal professionals on that.
>
> It is, however, distasteful and exploitive.  Taken as a whole - and I've
> read the sites policies as well as the complaint, this is not merely
> "legitimate price discrimination".   It is an attack on IP holders and
> on ICANN rules designed to protect them.
>
> Whether or not you approve of the "sunrise" policies established by
> ICANN, this is clearly an end-run around them.  The policies were
> intended to make it reasonably easy for trademark holders to protect
> their rights(2).  The policies of .SUCKS are clearly designed to make it
> difficult and expensive. Both during the sunrise period, and through
> general availability.
>
> We should worry about any action that constitutes an attempt to evade
> the spirit of those policies.  We may not feel particularly solicitous
> of trademark holders.  But the next policy whose spirit is eviscerated
> may be one closer to our hearts.
>
> As should be well known in this forum, I strongly believe that there
> SHOULD be TL domains where names are understood not to be trademarks,
> and are not subject to the abuses that trademark holders can and do
> inflict on others.  Especially (hear my chorus coming?) individual,
> non-corporate domain name holders.  However, these should be established
> within the spirit of ICANN policies, changing them if necessary.  And
> with respect for the legitimate concerns of IP holders.  If .SUCKS were
> attempting to create such a domain, it would have my support.
>
> What's happening here is not something that I approve of.  The ends do
> not justify the means.  And if we want our legitimate concerns to be
> addressed and policies that support them enforced, we ought not to be
> supporting the means being used here.
>
> Encouraging this sort of use of the domain name allocation system is a
> mistake.  Any system works when everyone plays by the spirit of the
> rules - even those we disagree with and lobby to change.  Anarchy is no
> one's friend and does not advance anyone's cause.
>
> Frankly, I'm much more inclined to write a letter in support of the IPC
> complaint than to support .SUCKS.  Who knows?  Perhaps the IPC would
> reciprocate with some respect for our concerns.
>
> (1) the .SUCKS model subsidizes anyone not affiliated with a trademark
> or brand who registers a critical site with a specific provider.  The
> .SUCKS website https://www.nic.sucks/products uses the words
> "subsidized" and "subsidies".
>
> (2) I think: too easy.  But that's not an excuse for flaunting the
> spirit of the established rules.  Two wrongs do not make a right.
>
> Timothe Litt
> ACM Distinguished Engineer
> --------------------------
> This communication may not represent the ACM or my employer's views,
> if any, on the matters discussed.
>
>
>