Domain Name Disputes with .pk ccTLD and Role of DNDRC.COM

Lately many individuals including Sabah-ud-Din Qazi, a journalist and telecom analyst questioned about dispute handling capabilities of DNDRC

Qazi sb, mentioned one specific instance of Djuice.pk, which was resolved by a sole panelist, who wrote in his ruling: “The Domain Name leads to a so-called “click through” website with pop-ups (e.g. an advertisement for on-line cellular services) and different links to other websites and companies, none of them associated with the Complainant or its authorized dealers, but all of the seemingly similar expertise as the Complainant, being that of cellular based services.”

In real, the penalist ignores the fact that it was a popular entertainment news blog. Google Cache still describes Djuice.pk as Djuice.Pk Mobile Phone Blog, Free SMS, MMS , Ring Tones. A complete mobile phone blog with latest and updated information related to Free SMS, Free MMS, Ring tones, Java Games, GPRS and Wap Service. 3GP movies, MP3 Songs and news and reviews……

The owner must had given some time so that he/she could inform his visitors about the new URL of his blog
And when the owner applied for the djuice.pk domain, it was duty of PKNIC to refuse him since his applied domain had belongs to a mobile company’s name. It seems that time you were only interested to secure money, not for one year that is common in international market, but for 2 years.
In response to Sabah-ud-Din Qazi, Zahid Jamil, Barrister-at-law, Jamil & Jamil expressed himself in following manner…

More people should read the decisions and discuss them in the DNDRC workshops so that issues and improvements in PKNIC policies, DNDRC Rules and the arbitrators’ decisions should be made. Constructive and positive feedback for improvement of institutions in Pakistan is better than making institutions the target of slander and hence, your comments and interest are much appreciated.

Just a few points regarding your analysis about how domain name disputes are decided:

Even in WIPO and NAF decisions (all the approved Centres by ICANN) the decisions and process do not provide any such right to the Respondents to inform his visitors of the change since he never had a “legitimate interest” in the website in the first place – pls see UDRP.

The decision was not unilateral. Email to the Whois contact information was sent – this is mentioned in the decision. Denials by Respondents of not receiving any notifications is typical. I think labelling the decision as “unilateral” without mentioning this fact may be unfair to the arbitrator (who ethically cannot publically comment or defend the decision).

Also with regard to the website being used as a legitimate bolg, the use of the website for purposes to divert users under to a “confusingly similar” website (domain name) without a “legitimate interest” in the domain name is illegal – pls see UDRP. Using it for any other purpose does not convert it into legitimate as it is illegitimate and illegal ab initio (ie. from the beginning).

Also it is interesting that the cybersqautter in djuice.pk chose the domain name djuice.pk when he knew that this was a popular international trademark. Such registration would not be “bona fide use” – pls see UDRP.

Moreover, with regard to trademark registration under UDRP trademark registration that is seen is both domestic and international. I think all of us can agree that djuice is Telenor’s trademark and tradename and the particular choice by the cybersquatter in registering this domain name is not in the interest of the user community or confidence in the .pk ccTLD. The perception of .pk ccTLD internationally and its value in being a ccTLD that provides for recourse for such cybersqautting is a good thing for its economic value to users and Pakistan.

Also, it would be interesting to know whether the cybersquatter has any registrations of djuice in his name. I am sure he does not. If you note Telenor has such trademark registrations. I think that settles the matter.

If your information comes from reading the decision then the labelling of the decision as “unilateral” is not in consonance the reading of the decision. However, if these facts are coming from the statements of the cybersqautter then you may wish to reconsider the source.

By the way your earlier suggestion that NR3C could have been approached in this case is right. No one would have any sympathy with the cybersquatter who is fortunate that Telenor did not approach NR3C under the new E-Crime Ordinance in regards its website. Had an FIR in this case been registered (and under this new Ordinance cybersqautting can be seen as Electronic Fraud and also possibly come under its definition of spoofing) then I think the cybersquatter would have found it far more difficult. Please also note that the E-Crime Ordinance allows for international cooperation allowing NR3C to pursue the accused or witnesses outside Pakistan using INTERPOL.

Once again your role raising interest in Domain name disputes and DNDRC are very positive. The more people who read the decisions and when attending the workshop provide their input for improvement in PKNIC policies, DNDRC Rules and the arbitrators’ decisions the stronger and more credible the process and institution will become. Please also do let us all have your contact details. The Society you represent does not provide much detail in this regard. Could you also elaborate on your registration in Pakistan as an NGO: are you registered under Pakistani law? I think the Society’s stated purposes can be very useful in terms of ICANN and IGF issues. Maybe we should discuss possibilities

Latter on, Mr. Khalil Ahmed, CEO and Chairman of PakNIC (Pvt.) Ltd. responded to Mr. Zahid Jamil’s email. I am incorporating his email too (with his kind permission)

While California based PKNIC SRS, Inc. (http://pknic.net.pk) has done a great job in the past for managing .pk ccTLD now Pakistan Internet community is very well educated and aware of their rights and cannot be fooled around by making fake PKNIC Advisory Group, false statements like “The policy for PKNIC is open to change by all Pakistanis (by voting)”, making a brand new controversial DNDRC.COM in 2006 for .pk domain name resolutions and using technical words on the website like “Delegation” and “Members of Shared Registry System” to give an impression like .pk registry is being run on share base model and public is making policies by vote. Those poor SRS Members are merely treated as pknic resellers with no access to the registry system except via email to submit a domain register form, that is all. We have seen tremendous increase in public complaints at public forums as well as with Government of Pakistan/PTA. Mr. Zahid Jamil (who owns DNDRC.COM) gave a presentation at recent PTA (Pakistan Telecommunication Authority) meeting leaving doubts like he is a pknic spokesman, even some people raised their eyebrows whether he is a salaried staff member of pknic? Same kind of concerns have also been seen on internet public forums. Initially when I suggested to outsource .pk registry to companies like Afilias or Neustar following .IN model, I was called as “Jews Agent” and person having “Indian Agenda” and what not.

We have been suggesting:

1. For Pakistan .pk domain name resolution, a 3^rd party completely unbiased and neutral entity (not a single person or proprietorship) either in Pakistan Judicial group or at Government level entity or a group of professionals from Private and Universities sector (preferably mixed of all three) should be considered for such important issue of .pk domain dispute resolutions. There should be multiple Panels and not a single person or single company. If current DNDRC.COM qualifies the criteria, it may be considered as a member of the Panel.

2. Secondly, I encourage Pakistan ccTLD Manager, Mr. Ashar Nisar, to signup agreement with ICANN following the practice of 40+ other ccTLDs Managers who already have signed up agreements with ICANN. Currently we have seen people of Pakistan has been posting on ICANN public forums and requesting ICANN to step-in but in order to make that possible, .pk ccTLD Manager must be bound by an agreement with ICANN.

3. Some technical and management related issues:

a. EPP protocol based automated registry system is a need of time.

b. As per official email reply from PKNIC after submitting a domain changes form with DNS Server changes states that DNS server changes may take up to 2-7 days which is not acceptable.

c. There is no way to change or update domain Registrant/Admin information without going through a paper work and providing copies of Passport, National Identity Card, certificate of company incorporation, etc. which are all unnecessary and bureaucratic. It may be valid for domains in gov.pkk or edu.pk but not for general domains like .pk, com.pk, net.pk, org.pk, etc.

d. Further domain renewal payments are not accepted unless PKNIC generates invoices for the same which in some cases do not provide enough time before domain expiration. In some cases where I am aware of the domain names are set to expire June 28, 2008 and as of today, June 15, 2008 (13 days left for domains to expire), the renewal invoices have not been generated yet by PKNIC.

e. The email addresses of Advisory group members are not being shared among the members and there is no open forum for discussion which leaves everyone to think whether is it a real Advisory Group or fake? There is no voting system or policy discussion as pknic claims on their main website.

f. A practice of different pricing model and different registry access level for different .PK Registry SRS members should be eliminated which creates doubts of nepotism. All SRS members should have equal access to the registry system and equal pricing model. Right now majority of SRS members complain of not having access to .pk registry system except manual email communication.

g. Disaster recovery plan for the registry is important. Current fire in ThePlanet data center left PKNIC registry system down for about a week. Though DNS servers were not affected but the whole registry system along with their database, email server and main website had been down during this time period.

h. No advanced notification or anticipation of policies changes or system maintenance are being served. There is a big lack of communication even among registry and SRS members. We have seen in the past some active .PK domain names were cancelled after 30 days of registering simply by fabricating the PKNIC policy over-nightly and making that as a reason for cancelling active domain names.

i. IMPORTANT: Registry itself should NOT be a registrar as well. Some SRS members received emails directly from .pk ccTLD Manager (Mr. Ashar Nisar) threatening to cancel their SRS membership only because they were selling .PK domains at lower rate then what PKNIC registry was selling itself to the public.
Here is a quote from an email sent to one .pk SRS member by ccTLD Manager, Mr. Ashar Nisar:
“Please be advised that your offer to sell domains below the published PKNIC rate of Rs 2000 is a violation of your SRS agreement. If this practice does not stop immediately, your SRS agreement will be terminated for cause, and any balance in your account will be refunded to you…..”
I could not find any clause which says such restriction about the pricing, please check yourself: http://pknic.net.pk/policy-text.html.

j. Currently PKNIC has 2 model of retail pricing in effect, $36 or Rs.2,000 for those who have physical presence in Pakistan and $48 for foreigner individuals and companies who do not have physical presence in Pakistan. First question is, do we really need this pricing discrimination or a flat equal price should apply to all no matter what is your geographical location? Secondly, there is no clear policy about who and which factor drives or qualifies this price difference. For example, I am a USA resident with NJ based business while same time I am citizen of Pakistan and also run business in Pakistan which is also incorporated in Pakistan and maintain physical presence in Pakistan. So do I qualify for the lower rate of $36 or higher rate of $48 which is for foreigners? Is the country name listed in Registrant address decides this pricing difference or something else? If I am being charged or invoiced for higher rate of $48 domain name while I believe I should be charged lower rate, to whom I should turn to for a justice?

Accountability, transparency, equal rights and equal applicable enforced laws are the key points. The big question which leaves us all nowhere is, “if someone believes he/she is a victim of PKNIC or DNDRC.COM, is there any authority where he/she can appeal or turned to for a justice?”. If someone creates a proprietor business or private company and starts claiming that his company represents the country or community as a whole what are the ways to prove its claim and to make sure no individual is hijacking the whole community at national or international level? These are a few biggest challenges for Government, PTA, NR3C, ICANN and for all of us.

Mr. Zahid Jamil from DNDRC.COM made two statements on the public forum recently:

1. Quote:
“DNDRC has in the last year received invaluable training and policy assistance from NOMINET UK (.uk ccTLD manager) and also invaluable policy advice from DENIC (.de ccTLD manager)…” and;

2. Quote:
“In addition it (DNDRC.COM) is also a member of an ICANN constituency (the only member in that constituency from Pakistan) with voting rights in the ICANN structure”

I was initially impressed with his achievements. Well, when I contacted Nominet UK, their response was that they do not know any person of name “Zahid Jamil”. There may be some possibility that he may have met their individual staff member but his claim as quoted above at item # 1 gives an impression like his DNDRC.COM has Nominet and DENIC support or assistance on the back for his policies. An official from Nominet UK writes (I am keeping person’s name confidential for privacy as I have not asked his/her permission yet to disclose his/her name):

“….sorry its taken so long for me to get back to you, but I was checking to see if anyone recognised Zahid Jamil. I have only asked one department (our DRS department) whether they knew of him, but they have no recollection and do not carry out training or do affiliation. This is not to say that he hasn’t been in contact with someone else, or has visited a different department, but I thought the DRS would be the obvious place to start.“

Note: DRS is The Dispute Resolution Service at Nominet UK and according to them they do NOT carry training or affiliation.

Picking up domain name DNDRC.COM itself is very confusing and gives an impression like this entity is an ICANN or Pakistan’s representative or collective some sort of regulatory authority. Domain name ADNDRC.COM belongs to “Hong Kong International Arbitration Centre” and was registered in 2001. Domain DNDRC.COM was registered in 2006 and obviously has very similarity with ADNDRC.COM (only one letter difference) and as per PKNIC statement in a similar other case where .pk domain names were cancelled “any common man can easily gets confused with these two names”. Some people already had raised such concerns of cyber squatting at public forums (http://digg.com/tech_news/DNDRC_s_Controversial_Decisions_2 & http://articles.webguide.pk/domain-name/domain-disputes/dndrcs-controversial-decisions/). What wikipedia says about Cyber squatting is here: http://en.wikipedia.org/wiki/Cybersquatting.

More interesting on DNDRC.COM website, they claim that:

“The DNDRC was incorporated in the first quarter of 2006 with input and assistance from the Hong Kong International Arbitration Center www.hkiac.org and they played a pivotal role in encouraging the establishment of a domain name dispute resolution centre and its procedures for Pakistan’s .pk ccTLD…. ”

Such statements make again public confused like they have some sort of affiliation with “Hong Kong International Arbitration Center” or DNDRC.COM business is part of HKIAC since they own domain name ADNDRC.COM. Also as per my knowledge, DNDRC.COM is not incorporated entity under Government of Pakistan Companies Ordinance.

After reading on internet and listening so much about this controversial DNDRC.COM and the owner, Mr.Zahid Jamil’s role in Pakistan domain names at pknic, I thought it is my responsibility to raise my concerns to ICANN as being a Registrar because we do not want same thing to have repeated for other gTLDs at ICANN level especially when DNDRC.COM is repeatedly attempting for having some kind of role in ICANN using Pakistan community name. There are also some public postings on ICANN public forum as well: http://public.icann.org/node/343

About the past decisions DNDRC.COM had made for .pk disputed domain names, my and every neutral Pakistani citizen’s concerns are whether it was rightfully done to save someone’s trademark rights or not:

1. First of all, a question which has never been replied by PKNIC since DNDRC.COM was made in 2006 as the only dispute resolution authority, who appointed DNDRC.COM as a Dispute Resolution Authority for .Pk domain names in 2006 or later? Was this a hand-picked decision by .pk ccTLD Manager or PKNIC consulted Advisory Group to make such decision?

2. As of a common practice at ICANN level, domain disputes are being considered and solved by using Arbitration model. About arbitration, Wikipedia says http://en.wikipedia.org/wiki/Arbitration – “Arbitration is a legal technique for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal”), by whose decision (the “award”) they agree to be bound.” Questions are:

a. Were the decisions made by DNDRC.COM about .pk domain names followed Arbitration model?

b. Were all parties including the defendants were given an equal opportunity to attend the Arbitration and defend themselves?

c. Were invitations sent out accordingly to all parties with enough time to reach out and DNDRC used a tracking shipment as a proof?

3. As of my knowledge, WIPO and other ICANN’s approved domain dispute resolution entities are consist of a panel of professionals (not necessary they have to be a Lawyer or a Barrister) and decisions go with majority vote after carefully analyzing and studying the case. While reading DNDRC.COM decisions reports on their website (http://www.dndrc.com/cases_resolved/), there has always been one person “Sole Panelist” as it appears in the signatures area of the reports which might be a concern to all of us.

4. Other important points should be considered before making such decisions:

a. Were these domain names registered before someone got such trademarks or after the trademarks were issued?

b. Was the trademark applied after domain registration with intention of hijacking domain names?

c. Were those trademarks actually got issued and registered OR were only applied for?

d. Were decisions made based upon “Applied For” trademarks which were not yet approved and issued or those trademarks were already approved and issued to the plaintiff/claimants?

There is a possibility that those who lost domain names are just angry because they’ve lost their domain names or because they were not given a chance to defend themselves or may be justice was really not served.

Someone mentioned that DNDRC.COM provides free of charge services. Just to make clear on DNDRC.COM, their fees as listed on their website (http://www.dndrc.com/dispute_resolution/fee.shtml) are as :

Arbitrators Fee: US$ 600
Administrative Charges: US$ 200

TOTAL: US$ 800

I personally do not know Mr. Zahid Jamil and have no connection or any kind of positive or negative experience with him or his business DNDRC.COM, so my post should not be considered as a personal attack. I believe as being a Pakistani Citizen I have right to raise my concerns and questions to my country’s ccTLD registry as well as the domain resolution entity whoever it is. My other intention is to keep Pakistan clean and free of corruption as much as we can. Accountability is not a crime or personal attack but it is a public right for better and clean future.

Sorry for taking your time out of your busy schedule and my apologies if I hurt any body’s feelings.

Kind regards,

Khalil Ahmad

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