By: Mark R. Malek
Many of you may know that Twitter sued Twittad for trademark infringement over the “Tweet” trademark. Apparently, being a forward thinking company, Twittad decided to register the “Tweet” trademark and beat Twitter to the punch. This is really by no fault of Twitter. Twitter can probably be described as a victim of their own success. They launched this site that allows people to post 140 character updates. The people who use Twitter naturally started referring to these updates as Tweets.
In fact, there is an entire subculture and vocabulary that goes along with using Twitter. For example, on my Twitter account (@PTOLawyer) I have 18,000 followers, who I refer to as my Tweeps. I tweet content mostly having to do with intellectual property law. Sometimes my Tweeps will retweet my tweets so that their Tweeps can follow one of my tweets that they find to be interesting. Did you follow that? Twitter users did.
Anyway, Twittad saw some value in the Tweet trademark, and decided to file a trademark application for it. In response, Twitter sued Twittadd. In an article posted yesterday on Techi.com, it appears that Twittad has settled the trademark infringement lawsuit with Twitter. As part of the settlement, Twittad will transfer the registered “Tweet” trademark to Twittad. The settlement was confidential, so it is unknown whether or not Twittad received compensation for the trademark.
Here’s the question of the day – How does Twitter use the “Tweet” trademark in interstate commerce? The only thing I see on the Twitter website is a count of how many “Tweets” I have posted. I am not sure, but maybe that is enough. In order to receive federal trademark protection, you must use your trademark in interstate commerce, i.e., between two states. Certainly, using the trademark on the Internet will fulfill that requirement, but it has to be more than just an indicator of how many “tweets” I have posted, right? The trademark has to identify the source of a good or service. I am not sure how indicating the number of “tweets” that I have posted achieves that requirement. Twitter may possibly try to rework their site in the future in order to try to better use the “Tweet” trademark in interstate commerce. We will have to see where this goes.
In the meantime, please feel free to follow me (@PTOLawyer) on twitter for more great updates.