Protecting Twitter with T(w)ademark

by Tamera Bennett

The news has been a twitter about Twitter®, the social networking site, filing a trademark application for the word TWEET, and the current status of the application being  suspended pending the outcome of prior filed third-party trademark applications that contain the term “tweet.”

In researching this issue I found something  that should be of a little more interest to the folks at Twitter.  Take a look at the trademark below for TWEETPHOTO.  Does it look familiar to you?  Would you think this brand and the services offered are associated with Twitter?

Compare to the Twitter trademark:

There is a registered trademark for the word TWITTER without design owned by Twitter, Inc.   Twitter, Inc. has a pending trademark application for the stylized version above in black and white.  A black and white registration extends to protect a trademark used in color.

The TWEETPHOTO trademark application has been initially refused as descriptive of the services offered under the mark:  Providing a web site that gives computer users the ability to upload, exchange and share photos, videos and video logs.

In the initial refusal (office action) the trademark examiner stated:  The relevant definition of ‘tweet’ is “[a]n entry posted on the microblogging  service Twitter.” [.] The relevant definition of ‘photo’ is “photograph.” [.]  Thus, the term ‘tweetphoto’ means an entry posted on Twitter to which a photograph is attached.

Two points to ponder:

1.  Does TWITTER  have an actionable claim against TWEETPHOTO, not because of the word “tweet” but because of the look and feel (unfair competition claim) of the TWEETPHOTO mark?

2.  Has a trademark examiner just made a ruling that TWEET is generic as related to the services offered by Twitter?

About Tamera Bennett

Tamera Bennett, nicknamed by her clients as the IP quarterback, develops strategies to protect and leverage each client's intellectual property. She works closely with her clients to implement customized brand management programs. Her clients range from rock star to leadership coach and financial guru to custom motorcycle designer. Prepared with an undergraduate degree in Recording Industry Studies and a law degree from Texas Wesleyan University School of Law, Tamera represents clients throughout Texas and Tennessee in entertainment, trademark and copyright law related matters View all posts by Tamera Bennett

5 responses to “Protecting Twitter with T(w)ademark

  • samj

    You may be surprised to find it’s not so black and white – refer to my blog at http://samj.net/ for followup articles about “retweet” and “twitter”… the former isn’t theirs to trademark (it grew organically within the userbase) and the latter is at best descriptive and at worst generic. The way they have been [ab]using it with no enforcement whatsoever (until now) would suggest to me that they may to struggle to defend it.

    Which is good, by the way, for all of us who don’t want to be trapped in a single service. Imagine if Hotmail were the only email provider?

    Sam

  • ipandentertainmentlaw

    Sam raised some interesting points. I think a big concern for Twitter, Inc. should be unfair competition/dilution violations with marks like tweetphoto that have the same look and feel as the Twitter mark. The unsophisticated consumer would think the services provided under the TweetPhoto mark are being provided by Twitter because the marks look so similar from the color to the font.

  • samj

    Right – a logo is definitely trademarkable, though though their lax handling of their brand (while it has served them very well in terms of brand perception and uptake) one could argue that they deserve to lose it. My feelings are stronger with regards to the words “tweet” and “retweet” but I feel “twitter” is fair game too.

    The other thing is trademarks are designed to protect the public interest ultimately (so I know what I’m drinking when I buy Coke®). In this case it looks very much like they are being used to abuse us by securing a monopoly. I have little time for that kind of behaviour.

    Sam

  • RudyG

    twitter® i am unable to find a registered symbol on their site for the mention on any. If i was referencing twitter how would I use the word not graphic. Is it TWITTER or Twitter or twitter with or with out “®”

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