Sunday, May 29, 2011

Safaricon.co.ke: Safaricom "Bullies" Registrar, Domainer into taking down domain name

Safaricom has been the object of bitter complaints from some clients with several gripe blogs coming up to lampoon the service provider for its exorbitant fees, and some Kenyans also complaining on social media that Safaricom is milking every cent from their pockets in its call, money transfer and data segments.

It seems one dissatisfied customer and domainer took it a creative step further and registered the domain Safaricon.co.ke. I had not seen the website so I do not know the kind of content that the website had, whether it contained gripe content or if it was parked. KENIC does have dispute resolution mechanism though not along the  lines of South Africa Institute of Intellectual Property Law's DomainDisputes.co.za that has been very successful in resolving domain disputes in the .co.za namespace. In Kenya, domain disputes can be handled by dispute resolution service providers appointed by KENIC Dispute Resolution Center, Chartered Institute of Arbitrators Kenyan Chapter or the Kenya High Court even though I have not seen any history of online of domain dispute resolution proceedings in the .ke namespace.  So, was procedure followed in suspending the domain name?

The fact that a Safaricom boss can make some back office calls(assuming the patch work of this story on this blog is factually correct) to KENIC and a domain registrar and bully them into suspending a domain name might not reflect well on KENIC and its commitment to insure user's rights, even in cases where a user appears to have engaged in an abusive registration. The right procedure is to follow the dispute resolution mechanism set forth by KENIC. I believe the registrant of the domain, Blackyard Technologies Ltd, still has full ownership and rights of the domain until the expiry of one year but the registrar simply removed nameserver services for the domain to avoid annoying Safaricom since the Whois records still show them as the owners of the domain name. BTW, Safaricom also provides domain name registration services, so IF this story is true, then I might have big ????? about Safaricom's Domain Registration service and whether Safaricom can in the future be trusted to guarantee registrant's rights, especially in cases where users register "controversial" ("controversial" is in the eye of the beholder) domain names.

There was a GoDaddy gripe site called NoDaddy that ran for years and ranked on Page 1 of Google for the search term "GoDaddy" dedicated to lampooning GoDaddy and its Boss Bob Parsons, referred on that website as "scumbob". There's twisted irony here that the Safaricom CEO is also called Bob :) When half of GoDaddy was sold and "scumbob" became a Forbes billionaire, the new investors paid out the site owner to shut down the website. GoDaddy did not make calls and threats in the dark. Coming closer home, did Blackyard Technologies Ltd violate Safaricom's rights? There are two scenarios here depending on the content; either the domain Safaricon.co.ke was a gripe site(i.e. Safaricom is Conning Kenyans plus associated content) or the registrant was typo-squatting Safaricom.co.ke since "n" is just next to "m" on my Qwerty keyboard so there is a % probability that a user(the type-in traffic kind) meaning to access Safaricom website is likely to land on Safaricon.co.ke.

The Scenario: Typo-squatting Vs Fair Use
 Typosquatting is defined as the intentional registration of misspellings of popular website addresses in order to garner large amounts of traffic. At face value, this might look like a clear case of typosquatting but I can't call this yet since I did not see the website. Safaricom's online Brand protection department, if such exists, should have forestalled this by registering common misspellings of Safaricom(Sagaricom, Safaricon...) to keep them off the hands of typosquatters. But "Safaricon" can also mean a conman who likes Safaris or who likes conning people on Safaris :) , the weight of each party's arguments can be resolved via a UDRP. Accordingly, if Safaricom thought Blackyard was typosquatting its brand name, the appropriate procedure, according to KENIC's own rules should have been the following:
  •  File a dispute proceeding with KENIC and prove that the registrant had no rights to the name, was typosquatting or using the name in bad faith. Note that if the registrant was using the name to alert users of Safaricom's alleged "conning" of clients then that's not considered bad faith.
  • The registrant, Blackyard, would have had to demonstrate their rights and legitimate interests in the domain name. This is easy depending on the content, you wouldn't even need a lawyer if you know your rights as a registrant and know how to navigate your way around this minefield.
  • Blackyard and Safaricom must then agree on a Dispute Resolution Service Provider appointed either by the High Court, Chartered Institute of Arbitrators Kenyan Chapter or the KENIC Dispute Resolution Center. If they don't agree, then KENIC would have arbitrarily chosen a provider under whose jurisdiction both parties must submit to.
  • The result of the resolution should lead to the cancellation of the domain name, transfer of the domain to Safaricom or if Blackyard wins, then they retain the domain name.
  • The resulting decision as determined by the dispute resolution service provider should be published all over the internet for everyone to see.
 Now, if Safaricom did not follow these long and painful steps, then Safaricom, KENIC and the Registrar did not follow due process. Blackyard should just migrate to a new registrar to provide them with nameserver services and hosting and continue publishing their content. The problem is that most Kenyans let their Registrars/ISPs register domain names on their behalf, in this case you don't have much rights to claim. Users need to be educated to register domain names using their own names and contact details.

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