With the goal of fostering public commentary, the new domain name .SUCKS was approved by ICANN. Despite objections from some in the IP community, the sunrise period for .SUCKS is now open; it runs until May 29th. During this time, trademark owners can acquire domains matching their trademarks (i.e. trademark.sucks) to avoid potentially problematic domains before '.sucks' becomes available to the public on June 1. But the price to do so is $2499!

Before the rollout, ICANN was asked to delay. It refused, but when the hue and cry didn't diminish, ICANN asked the Federal Trade Commission and Canada's Office of Consumer Affairs to see if the registrar's actions were illegal. The question is whether the FTC or the OCA will act before June 1st.

How do you protect your brands when the registration fee to reserve your brand is $2499 each year? Is there an alternative?

Starting June 1st, on a first-come, first-served basis, anyone may purchase a brand name for the sole purpose of blocking another party from using it. The annual blocking fee is $199. But one must pre-register first before the Trademark Clearinghouse.

If a brand owner is unsuccessful in purchasing the block domain name, and a third party registers your brand name, does the brand owner have a remedy?

The .SUCKS domain name holder is restricted from "distributing malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law, and the consequences for such activities include suspension of [the] registered domain name." If the commentary is truly defamatory (which is subject to a very high standard), then the domain name may be suspended.

But if the .SUCKS domain name is used for fair commentary or criticism about the brand, there is no way to take down the site. For brand owners, that may "suck".