Trevor Little

Vox Populi Registry, the company behind ‘.sucks’, has written to ICANN to challenge the referral of concerns over its pricing policies to the US Federal Trade Commission (FTC) and Canada's Office of Consumer Affairs (OCA), raising the spectre of legal action against the organisation. The move comes just days before a US Congress judiciary committee hearing on the ‘.sucks’ string.

On WTR we have been covering the Intellectual Property Constituency’s (IPC) opposition to the ‘.sucks’ pricing model (with sunrise registrations priced at a recommended $2,499), urging ICANN to take action. Its call resulted in the referral of its complaints about the registry’s pricing policies to the FTC and OCA. At last week’s INTA Annual Meeting, during a meeting of ICANN’s Intellectual Property Constituency, Gregory S Shatan, partner at Abelman Frayne & Schwab and president of the IPC, stated: “We will see letters of support for our concerns over '.sucks' from other parts of the ICANN community”. Pressure is certainly building - ICANN’s Business Community subsequently wrote to the FTC and OCA to echo the IPC’s concerns, and tomorrow a US Congress judiciary committee hearing will focus on “Stakeholder perspectives on ICANN: the ‘.sucks’ domain and essential steps to guarantee trust and accountability in the Internet’s operation”.

Both ICANN and Vox Populi Registry are notable absentees from the list of witnesses for the hearing, but yesterday the latter came out swinging, the letter obtained by WTR raising the spectre of legal action “if ICANN or any of its constituent bodies (or any directly responsible member thereof) engages in any further wrongful activity that prevents the company from fulfilling its contractual obligations and operating the ‘.sucks’ registry as both ICANN and Vox Populi envisioned.”  

The letter hits back at allegations that the company had engaged in "illicit" activities, and that its practices are "predatory, exploitive and coercive", noting: “None of the letters in question identifies any manner in which any law might actually have been broken; instead they merely suggest (without explanation or logic) that Vox Populi's pricing may lead to ‘cybersquatting’ that could damage trademark owners. At the same time, though, the ICANN IPC's letter expressly recognises that registrations on Vox Populi's ‘.sucks’ registry are subject to ICANN's various trademark dispute resolution processes, which protect trademark owners from cybersquatting… To the extent such competitive use or criticism is unfair, trademark owners have a full complement of remedies that they can seek both through ICANN's dispute procedures and the laws of various different nations.”

Noting that the purpose of the string – that it would be used to “aggregate uncomplimentary commentary about companies and products” – had previously been approved by ICANN when it entered into its contractual relationship with Vox Populi, the latter states that its bid for the string was therefore based on “the assumption that ICANN would not interfere in its ability to manage the registry in accordance with its contractual obligations” and the fact that “as with all new TLD registries, ICANN [had] made a specific, considered decision not to regulate the price at which domain names would be sold”.

On pricing, it notes that, while the original proposal for the formation of a ‘.sucks’ registry put forward by consumer advocates would have banned companies from owning their own trademarks on the registry, the company has - in accordance with ICANN's rights protection mechanisms - permitted trademark owners to purchase their trademarks as domains, with the cost set to capture the “significant value to those trademark owners who wish to avail themselves of the opportunity to register their trademark as a domain”. Further, it states that “regardless of ICANN's inflammatory characterisations of Vox Populi's pricing, these prices, and the manner in which they were set, in no way violate Vox Populi's contract with ICANN or any laws”.

It goes on to criticise ICANN for forwarding the IPC’s “inflammatory” letter to the FTC and OCA without either asking the IPC for “some specific basis for the complaints” or giving Vox Populi an opportunity to respond before taking any action based on the allegations.

It goes on: “Instead, ICANN forwarded the defamatory allegations to the FTC and the OCA, in the process endorsing the allegations and further asserting that Vox Populi has engaged in ‘illicit’, ‘illegal’ activity that has been ‘predatory, exploitive and coercive’. Your letter identifies no law that has been broken, no regulation that has been transgressed, and no contractual provision that has been breached. Rather, it makes broad, sweeping allegations without any factual support, and republishes the falsehoods of the ICANN IPC's initial complaint letter. The ICANN BC letters cite statutory provisions, but offer no explanations as to how Vox Populi's actions in any way transgress those provisions. And while the ICANN BC suggests that Vox Populi has violated its agreement with ICANN, it cites no contractual obligation or provision that it alleges has been violated.”

It concludes: “We hereby demand that ICANN refrain from taking any further action in the future to impede Vox Populi's ability to operate the new TLD ‘.sucks’ registry in accordance with its contractual rights and obligations. To the extent that ICANN, the ICANN IPC or any other ICANN constituencies engage in any further wrongful activities designed to injure Vox Populi, or prevent the operation of the registry, the company will take any and all actions necessary to protect its rights.”

To date, Vox Populi has remained relatively silent in the face of criticism, presumably taking the stance that all publicity is good publicity. However, with pressure mounting, and with no invite to tomorrow’s Congressional hearing, it has clearly decided that it is time to fight back.

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