During the Bake meetup it came to our attention that the site Safaricon.co.ke has been shut down.Yeah shut down , meaning someone with sticky ugly fingers and authority somewhere did it. The first question in mind was, was it shut down at the hosting server or really shut down at the domain registration level. And who has the authority to do that. The domain being .co.ke, means the registration is done by Kenic and they are the ones who can pull it off the database but if it is done at the hosting point then that is different. The Safaricon Sucks facebook page posted the following on their news feed:
Safaricon Sucks: Unfortunately the folks at Safaricon have twisted KeNIc into suspending our account. No problem though, we will launch our website soon under a new top-level domain. We will definitely keep you posted….sincerely Safaricon SucksTeam.
Mmmh blame game..i checked the Kenic Whois records and found the following:
As you can see Status active and the name servers are pointed to ns1.primesecureservers.net
ns2.primesecureservers.net. So Kenic should not be blamed.
Well later on i came to realize that there was a court order or something closer to that. So the order was given to the host company to shut down the site…still not sure about that. Who is behind this and are they justified to shut down the site? Safaricom i would assume at this stage. Safaricom for all the intent and purposes has a brand to protect but again people on the other hand have freedom to express their views. Some views are extreme but again unless they are breaking the law then the backdoor means should not be used to silence them.
I am still confused whether this is copyright issue or more of trademark .. My learned friend Victor Kapiyo @vkapiyo seems to think it is more a of trademark as per his tweet below:
The issue here might not be about the name but specifically what whoever are behind safaricon are saying or the content of the site. Before we come to that, first take a look at some FaQs from chillingeffects.org
Question: What is trademark infringement?
Answer: Although different courts have different tests, the central concept is confusion in the marketplace. The law protects against consumer confusion by ensuring that the marks on the same or similar products or services are sufficiently different. A plaintiff in a trademark infringement case generally must prove 1) it possesses a valid mark; 2) that the defendant used the mark; 3) that the defendant used the mark in commerce, “in connection with the sale, offering for sale, distribution or advertising “of goods and services; and 4) that the defendant used the mark in a manner likely to confuse consumers.
Question: Can a trademark give someone rights in common words and letters?
Answer: Not all identifying names and phrases can be protected by trademarks. Protection depends on a mark’s strength, which is determined by how it is categorized. There are four categories (in descending order of strength):
An arbitrary mark receives the most protection since the name bears no relationship to the product — it implies imagination and thought. Kodak is an example of an arbitrary mark because the name itself suggests no connection to film or camera equipment. We learn this association only after the name has been used and becomes associated with the source of that product. A descriptive mark receives protection if it has secondary meaning in consumers’ minds. A generic mark rarely receives protection because it is naturally associated with something in consumers’ minds. An ordinary description is not special enough to warrant protection. However, if consumers connect the mark and its source in a way that would not exist without the mark’s use in commerce, then the mark can be protected.
Alphabet letters, initials, abbreviations and acronyms may be entitled to protection if they are so original that they constitute an arbitrary mark (e.g., NICAD for nickel cadium). Otherwise, they may be protected only if they had acquired a secondary meaning which means that consumers have come to recognize the mark and associate the goods with a particular manufacturer (e.g., IBM and BMW).
Did you know that there are many other sites or services that use the name Safaricon?
Meet Safaricon 2.7. They should have called it Safari Icon but they decided to merge the two and the dreaded word came up “Safaricon”.. The search on Google for the word Safaricon will give you About 132,000 results. Yeah…..
As you can see the name is not the issue here, the issue is what they are saying or the content on the site. Which is anti Safaricom. My question is should companies be allowed to shut down anybody who say things that they don’t like? We constantly fight any form of dictatorship from the government, haki yetu haki yetu. Perfect, how about the companies, should they be allowed to be dictators?