Thread: Tweet Trademark

I just read about Twitter applying for the trademark 'Tweet'.

While the blog post talks about "applications and services," I wonder if this means Twitter will go after domain names with the word Tweet (which relate to online social networking).

What do you think?

I think that they have no choice. If they don't do it, they risk losing their trademark. I'm pretty sure that a company that doesn't protect its trademark will eventually lose it.

I read via Domain Name News that Twitter's trademark application for TWEET has run into problems. The application has initially been rejected due to a likelihood of confusion between Twitter's application and the following three prior pending trademark applications:

(1) TWEETMARKS (filed March 19, 2009, first use in commerce 2009/02/01)
(2) COTWEET (filed March 23, 2009, first use in commerce 2009/01/06)
(3) TWEETPHOTO (filed March 29, 2009, first use in commerce 2009/03/1

I think Twitter waited too long to file their application. Just look at the dates above. It's only recently that the other three marks have been used in commerce. When did Twitter start using the term TWEET? Does anyone actually know?

It's not impossible for Twitter to somehow overcome the USPTO's initial objections regarding the cited prior applications (time will tell). Twitter has 6 months (from 1st July 2009) to respond to the USPTO's objections.

Another potential objection by the USPTO is that the term TWEET is not distinctive and is too generic to trademark. Again, time will tell if this happens.

What are your thoughts?

What would happen to famous Tweety cartoon character (which twitter has drawn inspiration from - for the tweets)

Could Warner Brothers stake claim to Twitter for TM infringement

I think even without the prior applications, getting a trademark on the word "tweet" was somewhat of a long shot.

Update:

From what I can tell from the USPTO website, Twitter is going to wait and see if the 3 cited applications proceed to registration before it files arguments (re likelihood of confusion between its TWEET mark and the 3 prior marks).

Twitter's application will likely go into suspension pending the final outcome of these 3 cited applications.

I do not know the legalities. I was under the impression that Twitter allowed other people to register domain names with 'twitter' as part of the name. In other words, they did not protect the 'Twitter' name on the past. This was a deliberate policy. I do not know if it is still in effect.

Twitter trademark this may help you from their blog

Thanx for the update, Chandan. It appears I was right, Twitter is not super-protective of its name. But its policy of being lenient raises other questions, which may require a lawyer to answer.

It appears Twitter wants to take the position that it will allow some use of its name by third parties, but try not to allow some other use of its name by other third parties. I am not sure whether courts allow this selective use. My understanding is that courts like all-or-none decisions. If Twitter sues all third party users, courts accept that. But courts don't like it when Twitter decides it will sue here but not there.

Think of this analogous situation: people (in the US, at least) have privilege over their medical records. Third parties do not have access to a person's medical records.

Let's say husband and wife sue each other for divorce. Their medical records cannot be used as part of the divorce proceedings. But let's say the wife, for example, says husband drove her crazy and she started seeing a therapist. The moment she write words like that in her legal papers she waives privilege to her medical records and her husband has free access to them. Her privilege is gone.

In the same way, if Twitter permits some use of its name, but tries to stop other use of its name, I am not sure whether courts will allow selective use at Twitter's discretion. It is possible (lawyer here please) courts will say either you disallow everyone or you allow everyone, you cannot pick and choose.