The kong.ai UDRP decision deserves scrutiny

The complainant may have had a trademark claim, but the cybersquatting finding is harder to justify.

A recent UDRP decision for kong.ai gives me pause.

A large technology company, Kong Inc., which uses the domain KongHQ.com, filed a dispute against kong.ai.

Until recently, that domain name was used by an AI technology company.

The domain owner didn’t respond to the dispute, but I’m still concerned about the outcome.

Kong Inc. has a reasonable trademark infringement case, but I struggle to understand how this was a cybersquatting dispute.

Looking at the Wayback Machine, it sure seems that the respondent was operating a real business at the domain name. There were testimonials, and the bottom of the home page referenced other companies affiliated with the business.

Because the domain owner didn’t respond, panelist Darryl Wilson wrote:

Respondent did not dispute that it used Complainant’s mark and copied Complainant’s website as well as provided links to itself and others regarding counterfeit goods and services.

I’d be really interested to see if the complaint specifically said that the respondent copied the Complainant’s website and linked to counterfeit goods. The Wayback Machine suggests otherwise; the sites look completely different.

But again, the domain owner didn’t respond, so there wasn’t much for the panelist to go on.

However, one part of the decision strikes me as false:

Complainant contends that Respondent lacks rights or legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been given license or consent to use Complainant’s KONG mark, any derivatives thereof, nor register domain names using its mark. Nothing in Respondent’s WHOIS information or the record indicates that Respondent is commonly known by the domain name.

This strikes me as incorrect: the respondent is listed as Sumit Patel / Kong AI. So something in the Whois information definitely does indicate the respondent was commonly known by the name Kong AI.

Again, I think the complainant has a legitimate trademark dispute. And the domain owner did himself no favors by failing to respond. But, based on the written decision, it seems like this was not a case of cybersquatting under the UDRP.