That Horse Has Left the Station: Trying to Trademark Tweet

By Laurel Sutton

July 8, 2009

twitter-logoI employ a deliberately mixed metaphor in the title of this post to exemplify my confusion about what Twitter’s trying to do here. Quick trademark primer: trademarking a name of a product or service generally prevents other people from using the same name for confusingly similar products and services. So, for example, you can’t have two cars from different manufacturers with the name Thunderbird, but you can have a car and a mail app and liquor all named Thunderbird. You, the consumer, are not likely to think they all came from the same manufacturer.

The company Twitter already has a trademark for the name “Twitter”. Yet, strangely, there are trademark applications for “TwitterTag” and “Twitter Twail” from other companies. True, these are merely applications, but the fact that they exist at all implies that the people who filed them don’t think Twitter has much of an interest in opposing them. Twitter has already allowed dozens of companies to create software with their name embedded: Twitterrific, Twitter Digest, Twitter Analyzer, TwitterFox, TwitterBox, Sat2Twtitter, etc. By doing so, they’ve tacitly give permission for others to infringe on their trademark. If they try to defend their trademark against the new filers, what can they say? “Oh, we didn’t notice all those people using Twitter in the app names”? If you let one person use your name, you’ve opened the door for a LOT of other people to do so. Twitter, WTF?

Twitter founder Biz Stone recently wrote:

Regarding the use of the word Twitter in projects, we are a bit more wary although there are some exceptions here as well. After all, Twitter is the name of our service and our company so the potential for confusion is much higher. When folks ask us about naming their application with “Twitter” we generally respond by suggesting more original branding for their project. This avoids potential confusion down the line.

A little late for that, I think. And note how soft the phrasing is – “suggesting more original branding”. What happens if the developers don’t take the suggestion? Twitter’s not in the position to bring the hammer down.

Along those same lines, Stone says

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. However, if we come across a confusing or damaging project, the recourse to act responsibly to protect both users and our brand is important.

So…why are you trademarking it again? You’re not going to go after all those companies already using it? They aren’t confusing? Good luck trying to enforce that trademark, especially since there are already more than a dozen other trademarks filed with the word “tweet” in them. Again, WTF?

This illustrates one of the pitfalls of naming that we often run into. Clients will tell us “We want our name to become an industry standard word! We want people to use it as a verb!” Well, okay, but don’t expect to own it. By letting other companies use your trademark, you are giving away your rights to a piece of your intellectual property – and once you’ve done that, it’s almost impossible to get them back. If Kleenex had a penny for every time someone used “Kleenex” instead of “facial tissue”…Genericization: you don’t want to go there.

Now, that said, there are a lot of great twitter-related domains out there!

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