PARTIES' CONTENTIONS:
COMPLAINANT:
The Complainant made the following contentions:
1. The Respondent is the former CEO of the Complainant
2. The Respondent purchased the disputed domain name for himself while he was still the CEO of the Complainant.
3. The Respondent purchased the disputed domain name in bad faith, fraudulently stole the content of the Complainant‘s domain, FITNESSPEOPLE.COM, and is now using the disputed domain name to mislead costumers of the Complainant to believe that the Complainant’s business has been moved to the disputed domain.
4. In August and September 2016 while the Respondent was the CEO of the Complainant, a representative of the Complainant negotiated the purchase of another domain confusingly similar/identical to the disputed domain; FITNESSPEOPLE.COM. The purchase from the former owner, Raymond T. Furlong, was negotiated by the current CEO Patrick Drew on behalf of the Complainant.
5. The purchase of FITNESSPEOPLE.COM was finalized by the Respondent as CEO of the Complainant. The Respondent paid for the transfer of the domain by using his company credit card, and thereby by using funds belonging to the Complainant. The payment was made using escrow.com in September 2016.
6. Payment was made with a credit card belonging to the Complainant. The payment was made by "J.H.P MIKKELSENFITNESS PEOPLE B.V.", meaning that the payment ID consists of both the name of the Respondent and company name of the Complainant. The Respondent used his company credit card to finalise the purchase which is why the legal proprietor of FITNESSPEOPLE.COM is the Complainant.
7. The Respondent is no longer employed by the Complainant.
8. The latest update registered regarding FITNESSPEOPLE.COM in the Whois-register was made on 1 May 2017. On this date the Respondent transferred the FITNESSPEOPLE.COM domain to his alias Mickey Jezzard, but kept his own contact information on the Whois record, i.e. his telephone number and his e-mail address.
9. The Respondent was the person who on behalf of the Complainant purchased the FTNESSPEOPLE.COM domain.
10. After the Respondent was dismissed of the position as CEO of the Complainant, the Respondent started another company offering the exact same goods and services as the Complainant. The Respondent registered the disputed domain name which is identical/confusingly similar to the FITNESSPEOPLE.COM domain on 30 July 2016 using GoDaddy.com as the Registrar.
11. The Respondent copied the original website of the Complainant (as it looked on FITNESSPEOPLE.COM before the dismissal of the Respondent) to the disputed domain name. One of the appendixes attached to the Complaint shows different print screens that show the former content of FITNESSPEOPLE.COM, including:
- Purchase of a "Quest bar"
- Overview of people that had a membership with FITNESSPEOPLE.COM
- A customers print screen of a default on FITNESSPEOPLE.COM
- Link on Instagram
- Content on the Instagram profile
Another appendix shows following information on the disputed domain that does not refer to the Respondent, but to the Complainant, thus underlining that the Respondent has copied the whole content from FITNESSPEOPLE.COM on to the disputed domain name:
- the contact information of the Complainant,
- referring to "All rights are reserved by Fitness People B.V." ie. the Complainant, and
- stating "Welcome to FitnessPeople.com" in the "Terms and conditions" of the website.
12. The Complainant did not give its consent to transfer the content.
Rights and/or legitimate interests
12. The Respondent has no rights or legitimate interests in the disputed domain name in accordance to paragraph 4(a)(ii) of the Policy.
13. The fraudulent overtaking of the content of FITNESSPEOPLE.COM by the Respondent cannot establish a right or legitimate interests in the disputed domain name. The objective for the Respondent has been and is still to steal as many customers as possible from the Complainant.
14. In regards to paragraph 4(a)(i) of the Policy, the Complainant has rights due to the unregistered trademark and company name FITNESSPEOPLE that has been used consistently and continuously by the Complainant to market its goods and services since the founding of the company. The Complainant has used a significant amount of money in the marketing of FITNESS PEOPLE in the industry and some transactions have been completed through FITNESSPEOPLE.COM.
15. Unregistered trademark rights have previously been regarded as sufficient to satisfy the requirement in paragraph 4(a)(i) of the Policy.
16. The use of a term in connection with specific products have also previously been recognized as unregistered trademark rights, see accordingly WIPO case no. D2000-0575 (finding that complainant demonstrated unregistered trademark rights in a term based on evidence that complainant had been using the mark in association with its business for years prior to the registration of the disputed domain name) and WIPO case no. D2001-0770 (finding that complainant’s use of a term as a trade name in connection with its product on its website was sufficient evidence that complainant had tied its business name to its product in advertising and promotion and, consequently, was sufficient evidence of complainant’s rights in the trade name as an unregistered trademark).
17. Based on the above submitted evidence the Complainant has a common law trademark right to the FITNESSPEOPLE trade name. Since the Respondent has no rights or legitimate interests in FITNESSPEOPLE.COM the Complainant has proved that the requirements of paragraph 4(a)(i) and (ii) are met.
Bad faith
18. The disputed domain contains a direct copy of the content that belongs to the Complainant. The Respondent purchased the disputed domain name while he was still the CEO of the Complainant and while he was finalizing the purchase of an identical/confusingly similar domain name on behalf of the Complainant, in accordance to paragraph 4(a)(i). The disputed domain name contains the name and business identifier of the Complainant of which the Respondent used to be the CEO. The Complainant registered the disputed domain name in bad faith in accordance to paragraph 4(a) (iii) of the Policy and in violation of his Shareholders Agreement.
19. The disputed domain name contains the above stated information regarding the Complainant, underlining that the Respondent is using the disputed domain name to mislead customers of the Complainant to believe that the Complainant has moved its online business to the disputed domain name.
20. In accordance to Rules for Uniform Domain Name Dispute Resolution Policy section 3 (b) (ix) (2), the Respondent has registered and uses the disputed domain name in bad faith and the Complainant therefore requested a transfer of the disputed domain name to the Complainant.
RESPONDENT:
The Respondent made the following contentions:
1. It rejects any transfer of any its domain names, including <fitnesspeople.club>.
2. In July 2016 the Respondent personally purchased the disputed domain name and registered it in his personal name Jes Hvid Mikkelsen, Galionsvej 15, 1437 Copenhagen, Denmark.
3. The disputed domain name <fitnesspeople.club> has been registered in the Respondent's personal name only, and has at no point been registered by any other person or company. It has purchased the disputed domain name <fitnesspeople.club> before the Complainant FitnessPeople BV was even founded as a company.
4. The Respondent has been running the company FitnessPeople ApS in Denmark since 2013, as documented by appendix attached to the Response. He stated he will not accept any violation of his personal or company rights.
5. The Respondent stated that the Complainant FitnessPeople BV has no right to claim any domain, since the Respondent and his company FitnessPeople Aps have the historic rights to the name FitnessPeople.
6. The Respondent has over the years purchased and registered several fitnesspeople domain names, namely: <fitnesspeople.dk>, <fitnesspeople.eu>, <fitnesspeople.be>, <fitnesspeople.se>, <fitnesspeople.club>, <fitnesspeople.cz>, <fitnesspeople.com>, <fitnesspeople.pl>.
7. The Respondent has been the owner of several of the above-mentioned domain names for more than 10 years, and several of the domains are in use.
8. The Respondent stated he will under no circumstances accept claims from FitnessPeople BV in the Netherlands, or any transfer of any of my personally owned and correct-registered domains to any other person or company.
SUPPLEMENTARY SUBMISSIONS
The Panel decided to accept supplementary submissions (i.e. supplemental filings). Supplementary submissions were filed by both parties twice in form of so called “Nonstandard Communication“.
COMPLAINANT
By a Nonstandard Communication, the Complainant made the following further contentions:
1. The Response is "fraudulent as factually incorrect ." The Respondent is i.e. not running the company FitnessPeople ApS, company registration number 33867212, in Denmark. The company was declared bankrupt by court decree on 5 January 2017 based on a petition filed on 25 August 2016, cf. enclosed copy of transcript from the Companies Registry (Erhvervsstyrelsen). The handling of the bankruptcy was finalized by the court on 21 June 2017, so this fact was clearly known to the Respondent when filing the response in this matter.
2. The Complainant maintains its position that the disputed domain name is used in bad faith by the Respondent as it was legally registered on behalf of the Complainant and paid for by the Complainant.
RESPONDENT
By a Nonstandard Communication, the Respondent made the following further contentions:
1. The Complainant’s contention in the Complaint No 101587 “ The Respondent is Jes Mikkelsen who registered the disputed domain name on 4 October 2016, see Appendix“ is false according to the Respondent. He then stated he purchased the disputed domain name <fitnesspeople.club> in his private name on July 30, 2016, and attached invoice from the registrar.
2. The Complainant’s claims in the Complaint No. 101587:
“The Complainant is an online retailer of sport and fitness supplements, and offers consumers the opportunity to purchase products at the actual cost prices if the consumers become members of FitnessPeople Club.“
and
“In regards to paragraph 4(a)(i) of the Policy, the Complainant has rights due to the unregistered trademark and company name FITNESSPEOPLE that has been used consistently and continuously by the Complainant to market its goods and services since the founding of the company.“
are false according to the Respondent. The company Fitness People BV does not run any online business (nor offline) and is not operating as an online retailer. Fitness People BV does not offer nor sell anything to anyone. No products and no services. It is an inactive registration in the Netherlands. There is no trace whatsoever, to be found on the Internet of Fitness People BV business activities. The statements from the Complainant are false and written in bad faith according to the Respondent.
3. The authorised representative of the Complainant is in his submission of August 11, 2017, “accusing me of being fraudulent. That is a strong word to use by a person that clearly build the entire complaint on false information - as mentioned above - and it is of course not true. My aim is strictly to document my historic and continual use/business of the name FitnessPeople, and the complainant is even fully aware that the activities of FitnessPeople Aps was partly split and continued in Fitness People Aps, Hesselager 16, Brondby, in 2014. On top of that I, in person and under my name, started;
- The Facebook-page ‘Fitness-People.net’ in February 2011 accompanying an online training platform I marketed,
- the Facebook-page ‘FitnessPeople’ in October 2014,
- the Instagram-page ‘FitnessPeople.beone’ in November 2014,
- and had the FitnessPeople logo designed in November 2014 (see attached file, originating from Nov 26, 2014). I personally own the copyright to the FitnessPeople logo.“
4. My personal purchase and ownership of several FitnessPeople-domains - some for 10 years - and my historic and continued use of FitnessPeople and various business activities for more than 7 years in the name of FitnessPeople is documented and can not be questioned.
5. Lars Karnø, Bird & Bird, further explains in his ‘Non Standard Communication’ of Aug 11, 2017, that he failed to meet his simple obligations and duties on the complaint he filed in a wish to prolong this fabricated dispute. The usual period of vacation in Denmark ended two weeks ago. I do not know if Lars Karnø simply neglected his responsibilities or he didn’t bother to pass on the task to one of the more than 30 lawyers employed at Bird & Bird in Denmark. This negligence is sadly in line with the full text from the complainant in ‘complaint, No. 101587’. The complainant didn’t even care to write in the correct domain-name, fitnesspeople.club. This is unheard of. This complaint is pure harassment and solely an attempt to obstruct my legitimate business. This Bird & Bird-nonsense must end now for me to carry on with my FitnessPeople business activities selling fitness apparel in USA.
COMPLAINANT
By a Nonstandard Communication, the Complainant made the following further contentions:
As documented with Appendix 12 - the Shareholders Agreement of Fitness People B.V. - the Agreement was entered into and signed also by the Respondent already on 11 July 2016. Appendix 12 contains among other articles a Non-competition clause in article 14 and a Non-solicitation clause in article 15. According to clause 14 and 15 it is impossible for the Respondent to have any legitimate interest in competing activities after 11 July 2016 and until 36 months after selling his shares. Registering the disputed domain name FITNESSPEOPLE.CLUB after 11 July 2016 and using the domain for competing activities is a clear violation of article 14 and 15 of the Shareholders Agreement and clearly a registration and use of the domain in bad faith.
RESPONDENT
By a Nonstandard Communication, the Respondent made the following further contentions:
The Respondent stated he is not using any domain in competitive business, he does not run any kind of competitive business, does not violate any agreement, and does not violate the shareholders agreement either.
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