Simply adding “sucks” to the second level domain does not preclude confusing similarity with the complainant’s trademark. A pejorative is treated as a non distinguishing descriptive term. The question is whether the website to which the domain name resolves is what it advertises itself to be, a criticism or “gripe” site. For this the Panel must examine the website. The procedure is illustrated in TRS Quality, Inc. v. Gu Bei, D2009-1077 (WIPO September 25, 2009) (<radioshacksucks.com>:
The Panel notes that, in order to determine whether the Respondent is making a legitimate use of a domain name containing the negative term “sucks”, it is necessary to refer to the contents of the corresponding web site….
The reason for undertaking a factual review outside the record is stated in Wachovia Corporation v. Alton Flanders, D2003-0596 (WIPO September 19, 2003): “To do otherwise would legitimize cybersquatters, who intentionally redirect traffic from a famous mark, simply through the use of a derogatory term”. Absent evidence from the respondent, the factual review satisfies the question whether the website qualifies for protection under paragraph 4(c)(iii) of the Policy.
There are two Internet audiences for pretense domain names. The first audience is unfamiliar with the meaning of “sucks” and fooled by the domain name into believing it will be taken to the complainant’s website. The Panel in La Quinta Worldwide L.L.C. v. Heartland Times LLC, MD Sullivan, D2007-1660 (WIPO January 17, 2008) noted that “it is not self-evident that Internet users would always take notice of the slang word following the trademark in the Domain Name and recognize its negative import”. This applies particular to speakers not fluent in English. The second audience is familiar with “sucks” and is rather curious than fooled. However, in each of these cases the respondent is benefitted by the traffic. A third audience knows the meaning of the pejorative and may be interested in the expected commentary or criticism of the complainant. In La Quinta Internet users would not be disappointed; in TRS Quality they would.
In TRS Quality, the Respondent populated the website with various commercial links to Complainant’s competitors, a practice that undercuts a paragraph 4(c)(iii) defense and supports a 4(b)(iv) finding of bad faith. On the other hand, a complainant’s argument for transfer based on claims (not proof) of false and injurious statements is not sufficient to support forfeiture, as the La Quina Panel held: “[It] is not in a position …to judge whether the criticism found on the Respondent’s websites is valid or libelous. The Panel can only determine whether the use of the Domain Name appears to reflect a sincere effort to protest perceived ills, as opposed to a malicious effort to damage the Complainant’s reputation for some less creditable reason.” For the Chinese Respondent in TRS Quality to add a pejorative is risible because the word is most likely as unintelligible to him as to the class of Internet users who are looking for the brand.