The expression to tweet, is now commonly associated with micro blogging messages posted on the popular social media site. Although some have been slower than others to recognise its entry into our vernacular, the standards editor for the New York Times famously banned the use of the word tweet save for special effect, and the OED and Australian Dictionary Macquarie’s inclusion of Tweetup and Tweet respectively demonstrates how much these expressions have infiltrated everyday speech.
It therefore comes as no surprise that Twitter have attempted to register Tweet as a trademark, albeit so far unsuccessfully.
Twitter is determined to protect its brand
Twitter has generally seemed determined to protect its brand. For instance, in July of 2009 details of an email conversation between a Twitter representative and a third party developer showed that Twitter were very eager to actively bar third-party apps which included the word Twitter. In a later blog post Twitter co-founder Biz Stone explained this, and the company’s decision to attempt to trademark tweet;
“We have applied to trademark Tweet because it is clearly attached to Twitter from a brand perspective but we have no intention of “going after” the wonderful applications and services that use the word in their name when associated with Twitter. In fact, we encourage the use of the word Tweet”.
Their application was refused by the United States Patent and Trademark Office (‘USPTO’) in April 2009 and again in March 2011 due to the existence of the mark “Let Your Ad Meet Tweets” registered by another company called Twittad in 2008. There are too many companies trying to trademark names that are too similar – among them TweetMarks, Cotweet and Tweetphoto. The USPTO decided that, under Section 2 of the Lanham Act, where marks are too similar, there would be confusion to consumers.
Unlikely Tweet will be registerable
It seems unlikely that TWEET will ever be registerable as a trademark. It has simply become too genericised by this point. As often happens, and as one commentator put it, the trademark owner’s legal claim to their much-beloved mark “becomes increasingly slippery as the word burrows into the vernacular.” Marks are revoked due to changes in usage and language, for instance ‘escalator’ or ‘vaseline’, both of which became generic descriptions of their type of products, consequently had their trademarks revoked.
Of course, given that most of those who use Twitter based brand names are applications which themselves rely on Twitter, Twitter has considerable power to police and protect its own brand. In February 2011 for example, Twitter suspended two third-party clients, ‘UberTwitter’ and ‘Twidroyd’ for “violating the company’s policies and trademarks”.
The three year gap between setting up the site and applying to trademark the word TWEET most certainly lost Twitter the chance to trademark this word, despite the fact that they made the term popular. So, although Twitter could fight to have Twittad’s registration of ‘Let Your Ad Meet Tweets’ for ‘online advertising services’ revoked, such a move would be of dubious benefit to it. As mentioned earlier the word TWEET is now so widely used as a verb, that it would be surprising if the removal of Twittad’s mark from the registers would pave the way for Twitter to secure a registration itself.
Twitter’s experience in this situation should serve as a warning to other companies to protect all aspects of the business’ intellectual property at an early stage. Had Twitter secured registration of the word, it would have been possible for it to protect its status as a trade mark, by educating the public. Google is used as a verb but has not yet lost its trademark, proving that possession is 9 tenths of the law