USPTO Rejects Twitter’s Tweet Trademark Application
By Anna Johnson on August 24th, 2009Thanks for the heads up from Sam Johnston on this one: it seems that when Twitter applied for its ‘tweet’ trademark a month or so ago, it had already had its trademark application knocked back by the United States Patents and Trademarks Office (USPTO).
After applying to trademark the term ‘tweet’ on April 16, 2009, the USPTO had rejected Twitter’s application on July 1, 2009 because of the likelihood of confusion between its proposed mark and marks in prior-filed pending applications. These included ‘tweetmarks’, ‘cotweet’ and ‘tweetphoto’.
“Given all three of the marks identified look like proceeding to registration (it only takes one to rain on their parade), it’s my non-expert opinion that Twitter has a snowflake’s chance in hell of securing a monopoly over the word ‘tweet’,” writes Sam Johnston.
Is he right? Is Twitter just too late in terms of securing a trademark for ‘tweet’?
Not necessarily.
While I’m not qualified or expert in U.S. law, here in Australia there is the concept of common law trade marks (yes, they’re written as ‘trade marks’ not ‘trademarks’ here!)
If the law in the U.S. is similar, then Twitter could foreseeably block or force the USPTO to overturn the registration of the other trademarks on the basis that Twitter had a prior common law trademark over the term ‘tweet’.
In other words, if Twitter can prove that it was using ‘tweet’ as a trademark before the other applicants, and it was willing to go to the required effort and expense, it could possibly oust the tweet-related trademarks off the others and achieve register its trademark after all.
Of course, this is really for a U.S. trademark attorney to comment on, but if I’m right, Twitter may trademark ‘tweet’ yet…
Source: Sam Johnston, “Twitter’s “Tweet” Trademark Torpedoed,” 19 August 2009
August 24th, 2009 at 4:09 am
Morning Anna,
I’m an Aussie in Europe so I’ve been keeping an eye on both ATMOSS (#1303211) and EU Community Marks. Granted the US is the main battleground because that’s where apps like CoTweet et al are based and if there’s 10 million “tweet” brands then Twitter are, indeed, stuffed. It doesn’t help them that “tweet” and “retweet” (which they are now trying to trademark) both developed organically from the user base and are thus not Twitter’s to trademark (until very recently they weren’t even using the terms themselves and they’ve even been very lax with 3rd party use of the word “Twitter” itself).
The more interesting question for them right now is arguably whether the Twitter Trademark [is] in Trouble Too.
Anyway the “tweet” mark down under is a convention claim so it’ll be dependent on the US mark surviving 5 years if I understand well.
Sam