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525 University Ave., Ste 220, Palo Alto, CA 94301 (650) 322-8498
June 3, 2015
Jennifer J. Hagan
A New Domain that totally .sucks
On March 30, 2015, the .sucks domain became available for early registration. The “sunrise” option became
available to any company that was currently listed with the Trademark Clearinghouse and remained open
exclusively to them for a period of one month until May 29, 2015. The early registrations were offered at a
whopping premium of $2,500 with an annual renewal fee of $2,000.
The company operating the .sucks domains is Momentous via their subsidiary, Vox Populi. Momentous
won ICANN’s auction to operate the domain. Vox Populi’s stated hope is that the .sucks domain will
become platform for conversations about brands. However, if brand owners don't jump on their names, the
conversations may become pleasant for them. Get ready for Wallmart.sucks, Google.sucks,
Facebook.sucks, Uber.sucks, and maybe even Vox Populi.sucks.
After June first, if a name was not claimed by its brand parent, it was scheduled to become available to the
general public for registration at a significant discount of only $10 a year, but in a move that is being viewed
as unprecedented, Vox Populi extended the "sunrise" period for registering .sucks without giving any notice.
The new deadline for filing is June 19, 2015.
There is speculation that the act of extending the sunrise period was motivated purely by the fact that Vox
Populi wanted to take additional profits from late filers wanting to defensively secure the generic top-level
domain to prevent others from using it.
The Legality of a Domain that .sucks
One of the questions our clients ask regularly is: “Is that legal?” Can someone sell a domain that in and of
itself disparages the trade name of the business? Unfortunately, the answer to that is yes.
In the United States, due to the protections of the First Amendment and copyright laws, consumers have
the right to fairly use a company’s name, trademarks, product pictures and so forth for the purpose of goodfaith discussion which includes criticisms and complaints. Therefore, businesses are in a particularly
difficult position of being forced to protect their brand names by paying hefty amounts to secure domains
that might injure them.
However, businesses should feel some comfort that while consumers have a right to honestly venting, they
do not have a right to publish bad-faith lies. Most states recognize limits on what can be said or written
about a company and its products. These infractions are called the torts of commercial disparagement, trade
libel or product disparagement.
525 University Ave., Ste 220, Palo Alto, CA 94301 (650) 322-8498
The key legal elements to these torts include:
1. Publishing a false statement.
2. Concerning another’s products or services.
3. Know that the statement was false or reckless, or negligent in cases about private persons.
4. Intending to cause financial harm.
5. Causing Financial harm.
The difficulty in proving the torts usually relies on proving causation of harm, which requires a plaintiff to
prove loss of sales or damage to reputation which is directly tied to and caused by a defendant’s statement.
This can an impossible threshold to surmount in a world where everything is web-based, including purchase
decision making. How do you identify a potential customer who decided not to buy your product? It is
extremely difficult.
Widespread Dissemination and Commercial Disparagement
The Massachusetts’ Supreme Judicial Court recently handed down a new, powerful instrument in the legal
toolbox to fight web-based libel. In Hipsaver Inc. v. Kiel, 464 Mass. 517 (2013), the Court recognized a
novel exception for proving damages in commercial disparagement cases. While the case did not concern
social media, the Court recognized the exception of "widespread dissemination" which applies when a party
widely disseminates a statement “and it would be impossible to identify particular customers who chose not
to purchase a plaintiff’s goods or services…” as a result of the statement.
Oddly, since the Hipsaver decision, there have been no state or federal cases addressing commercial
disparagement which have cited it for the proposition that a plaintiff no longer needs to prove direct and
ascertainable damages.
Given that the .sucks domains are just now revving up for what could be an onslaught of commercial
disparagement, we might see significantly more reference and citation to the Hipsaver exception in the near
future concerning social media and online cyber smearing in trade libel cases.