The Complainant has submitted that while it does not own registered trade mark rights for its mark "The International Truth And Justice Project" as it only has a pending United Kingdom trade mark application for its combined word and mark logo, that it does own common law rights both in its name and in the combined logo mark.
In support of this assertion the Complainant has provided the following evidence:
1. Printouts from the Wayback machine that show that it has operated its website and domain name since 2015; and
2. Printout from Twitter showing that since 2017, 1328 people are following the Complainant and that there are 3049 followers and a total of 8068 "tweets" to that point, including a re-tweet by a UK cabinet minister.
The onus upon the Complainant under this element of the Policy is to show that its name or “The International Truth And Justice Project” mark as incorporated into its combined word and logo mark, has become a distinctive identifier which consumers associate with its services. Although the level of evidence required will vary depending upon the circumstances of the particular case, there must be sufficient evidence to demonstrate that by the date of filing the Complaint the name or mark is or will be associated by a reasonable section of the public as being distinctive of the Complainant (see section 1.3 of the WIPO Jurisprudential Overview 3.0).
In a case like the present one, involving the name or mark of an NGO, this could reasonably be expected to include not only evidence of use on a complainant's website and sole social media page as has been submitted, but also relatively substantial evidence of use or reputation on the internet, in news media reports, in public documents such as governmental reports, in activity reports of the organisation as sent to its members or supporters or to members of the public and evidence of any other possible forms of public recognition of the name or mark. Although the standard of evidence required for a non-commercial organisation's name and mark may be lower in the particular circumstances than for the mark of a commercial product or service, there is a threshold evidential requirement which the Panel does not consider has been met in this case.
The evidence submitted in this case, framed at its best, amounts to use of the Complainant's name and mark on its own website since 2015 and that it has 3049 followers on Twitter who could be located anywhere in the world. Contrary to the Complainant's submission this Panel doubts that this level of evidence on its own would support a finding of goodwill for the purposes of a passing-off action in a common law jurisdiction and in any events notes that conclusory allegations of unregistered or common law rights such as those made in the Complaint and even if undisputed, do not normally suffice to show secondary meaning (see section 1.3 of the WIPO Jurisprudential Overview 3.0).
The Panel also notes that in its view the Complainant's name and mark, "The International Truth And Justice Project" is at least in part descriptive and is not in the panel’s view highly distinctive. In general and as noted again at section 1.3 of the WIPO Jurisprudential Overview 3.0, where unregistered or common law marks are comprised solely of descriptive terms which are not inherently distinctive, there is a greater onus on the complainant to present evidence of acquired distinctiveness/secondary meaning.
For these reasons, the Panel finds that the Complainant has not met the evidential bar for demonstrating that it owns unregistered trade mark rights in "The International Truth And Justice Project" name or mark and that the Complaint fails for this reason under this element of the Policy However, noting that the Complainant has a pending UK trade mark application ( UK00003667995) for its logo mark that incorporates the words " International Truth And Justice Project", the Panel directs that when and if this application, or any corresponding trade mark application in any another jurisdiction, is registered, then the Complainant may refile the Complaint based upon its newly registered trade mark rights.
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