While Twitter has historically freely licensed its trademarks for use by third parties, it has recently changed course when it comes to unrelated business entities attempting to register the same or similar marks.
Specifically, Twitter filed a notice of opposition before the Trademark Trial and Appeal Board against Puerto Rico-based bird food company B. Fernandez & Hnos. (the “Applicant”), who had applied for the TWEET trademark. Twitter had previously applied for the TWEET mark, which was issued in May 2013 and primarily covers telecommunications and online messaging. Twitter alleged that it would be harmed if the application was registered and argued that it “has established extensive common law rights in the TWEET mark in connection with its goods and services”.
The key question will be whether there is actual or potential customer confusion for the specific uses of the trademark.
While it has been suggested that “the term ‘tweet’ [used in the Applicant’s context] does not call back to Twitter at all because it fits naturally in with the nature of the product in question”, Twitter contends that “consumers will likely associate the Applicant’s TWEET mark with Twitter and will assume there is a relationship between the Applicant and Twitter”.
Authors: Mark Leonardand Andrew Patel, 2020/2021 Articling Student-at-law
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