Not so fast, Twitter: 'Tweet' isn't yours

"Tweet" might be a word that has been popularized by Twitter, but that doesn't mean that the social network will be able trademark it.

According to U.S. Patent and Trademark Office documents found by blogger Sam Johnston, Twitter's application for a trademark on "tweet" has been preliminarily denied.

Twitter originally filed for the trademark on April 16. In the application, the company expressed its desire to use tweet "through the applicant's related company or licensee the mark in commerce on or in connection with the identified goods and/or services." It seemed like a standard application that, once reviewed, would make "tweet" one of Twitter's registered trademarks.

But after reviewing Twitter's application and sifting through its listing of pending applications, the Patent Office found that three companies had already applied for trademarks that contained "tweet" in their names. They were simply too close to the trademark Twitter wanted.

The Patent Office attached applications sent by those three companies--TweetMarks, Cotweet, and Tweetphoto--with Twitter's rejection notice. In that notice dated July 1, the Patent Office explained that each of those trademark applications were filed with its office before Twitter's application.

"Marks in prior-filed pending applications may present a bar to registration of applicant's mark," the office wrote.

It went on to say that Twitter's tweet mark "may be refused registration under Trademark Act Section 2(d) because of a likelihood of confusion between the two marks." It couldn't say for sure that it would be refused registration, since the three previous applications were still pending.

Twitter did not immediately respond to a request for comment.

The Patent Office notification to Twitter shows it was sent out the evening of July 1. Ironically, that morning, co-founder Biz Stone wrote a blog post citing his company's willingness to allow developers to use "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," Stone wrote on July 1. "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."

But the events surrounding that blog post, namely that Twitter asked a developer to find a new name and user interface because of their similarity to its own service, have become even more interesting with the knowledge that "tweet" isn't a Twitter trademark.

In an e-mail sent to that developer, Twitter wrote that it was "uncomfortable with the use of the word Tweet (our trademark) and the similarity in your UI and our own." The e-mail was made public on July 1.

Regardless of the timing, Twitter did not hold the trademark, even though its correspondence with the developer claimed it did.

Stone's blog post was written before the company apparently learned of the Patent Office's preliminary rejection notice. But it is noteworthy that in that post, Stone said that the company "applied" for the trademark. He didn't say that it was held by the company, like its correspondence claimed in the e-mail to the developer.

In either case, one thing is certain: Twitter, so far, does not hold the trademark to "tweet." And at this point, it doesn't look like the company will be getting it anytime soon--if ever.

[samjohnston]

Not that I could really care less but isn't it customary to source your articles: <a href="http://samj.net/2009/08/twitters-tweet-trademark-torpedoed.html">Twitter's "Tweet" Trademark Torpedoed</a>?

Anyway thanks for taking the time to investigate and write it up... my main concern is about Twitter locking in its virtual monopoly over microblogging which I see as an essential service (and as such one that should be distributed like email).

The key thing is that it would have been ok to use the term tweet "when associated with Twitter" under their regime, but add support for another service like identi.ca and the lawyers will come knocking. This is very similar to the Gracenote debacle in which CDDB was co-opted and competitors like FreeDB excluded under licensing terms. Needless to say that didn't go down well.

Sam

[dd13reis]

Hey Sam,

The link to your post has been added. It wasn't intentionally excluded -- I forgot to add it in during edit.

Thanks for your reply (and contribution to this discussion).

-Don

[samjohnston]

Thanks. It's Johnston, not Johnson by the way (if you happen to edit again - otherwise don't worry).

[dd13reis]

Fixed.

-Don

[samjohnston]

Thanks. There's more where that came from:

"Twitter" Trademark in Trouble Too
http://samj.net/2009/08/twitter-trademark-in-trouble-too.html

Sam

[Harknail]

And all three of the prior applicants have products that build on Twitters tweets...

[d4nowar]

That's funny, I associate tweets with birds.

[BSinton]

Well, tweeting and twitting is done by Birdbrains.

[cvaldes1831]

Twitter has to be one of the most unreliable web services I've ever used, and I'm not talking about the "I'm eating a sandwich" type of posts that apparently comprise 40% of the content.

I'm talking about system administrator, uptime, and site availability. It's as if a bunch of brain-damaged grade school script kiddies were running it. Utterly atrocious.

[ZetaZeta_]

When you have a great idea that millions of people think is a great idea, but you don't have the skills/resources to implement it perfectly, of course there's going to be problems.
Every system seems to have at least some bugs or usability issues early on, some more than others.
Twitter needs to monetize so they can start improving their service a bit more.

[boustrephon]

It is good to see that the US Patent office actually rejects some applications. In the past it has been known for being too uncritical. However, in this case it seems that there is a natural case for not restricting the use of the word "tweet". According to Random House, the word "tweet" dates from around the mid 19th century. Why wasn't this fact used to dismiss the application rather than prior use in business by companies who rely on Twitter and could therefore could not conceivably have prior use?

[omnichad]

This isn't a patent. A lot of people trademark real words with the same meaning their product uses. The word wasn't already associated with online status updates, but yeah - it is a real word that goes with their bird theme.

[gsmiller88]

Why not use "twit"

That way one word can describe the user and their messages.

[solitare_pax]

That works for me.

I don't have the time to waste on Twitter.

[Truckdrvr]

You would have to clear that with Leo Laporte, but I like your thinking.

[ZetaZeta_]

I think the idea is that people were already using the word "tweet" amongst themselves. Twitter improves their service based on how the user uses it. (implementing @replies after people start doing it, implementing retweets (RT) after people start doing it, etc.) I'm sure Twitter only wanted to trademark "tweet" because that's the common term for an entry on Twitter.

[realmerlyn]

And keep in mind that nobody but Leo Laporte and his crew can use "Twit" either, Leo's service mark for the "TWiT Network" (http://twit.tv). Yes, unfortunately, C&D's have been going out to all those websites and apps that have "twit" in their name.

[chaucer789]

******* is still available. colbert has yet to trademark it...

[chaucer789]

hey! that was a legitimate comment said by colbert on a national morning news show. i get bleeped here? nice.

[sanenazok]

"In either case, one thing is certain: Twitter, so far, does not hold the trademark to "tweet." "

Actually the only thing that is certain is that Twitter does not hold the REGISTRATION for the trademark to "tweet." It's possible to "hold" trademarks even without a registration. The vast, vast majority of marks are not registered. Registration does not create a trademark - it gives a lot of benefits but it's use in commerce that makes a trademark. Whether Tweet is a trademark by Twitter is a seprate issue from the trademark office rejecting the application.

[markdoiron]

Thanks, I was going to make the same observation. You obviously know a little about trademark law. Twitter's letter to the developer could very well have been truthful, as long as they didn't say that they held a ***registered*** mark. --mark d.

[omnichad]

Was looking for a comment to this effect, so I didn't have to post it myself.

[Great_Smoky]

Twitter does not have to have registered, or even demonstrated intent to register, a trademark in order to legally and properly assert ownership of that trademark. All it has to do is use the mark in commerce. Most trademarks, even those belonging to very large or very famous companies, are used for months to years prior to registration, although this practice is less common now than in the past. It is disingenuous to portray Twitter as a bully or as dishonest when they are completely within their rights to assert ownership to the trademark in question.

Registration is not a legal requirement, and marks that have been in use can be protected against infringement without registration, or even a pending application. Registration makes ownership a matter of public legal record, offers virtually ironclad legal protection, and also helps mark users avoid conflicts resulting in legal proceedings down the road, but it is not mandatory. If Twitter can prove they used the mark "Tweet" in commerce prior to the other applicants then they stand a good chance, regardless of their own filing or non-filing, of being recognized as the trademark's owner.

Whether or not Twitter "held the trademark" when it contacted the developer mentioned above is for the USPTO to determine, and Twitter's assertion is valid until proven otherwise. If they have been using the mark then they can, in good faith and all honesty, assert ownership. The timing of the correspondence is irrelevant.

The most likely result of this matter will be that Twitter will end up owning the mark, either by citing and proving prior use or by bargaining (from a position of strength) the mark away from whomever the USPTO determines to be the rightful owner. Twitter is cash-rich, and it does no good for other applicants who are basing their products on Twitter to create ill will with the outfit who gives them a reason to be.

[kieranmullen]

You say all that about how it is their right, but honestly isn't trying to copyright a common word just a tad bit silly?
Perhaps they should have thought of a better name?

[markdoiron]

Kieranmullen wrote: "You say all that about how it is their right, but honestly isn't trying to copyright a common word just a tad bit silly? Perhaps they should have thought of a better name?"

It's a trademark that's under discussion, not copyright. Entirely different set of laws and registering agencies (U.S. Patent and Trademark Office versus U.S. Copyright Office). As for registering a common word as a mark, there are rules that restrict it in certain situations. But that hasn't stopped some companies from doing so anyway. Ever hear of Apple?

--mark d.

[omnichad]

@kieranmullen You mean like Windows? Microsoft got a trademark registered on that one. Another preexisting word used as a metaphor.

[ZetaZeta_]

Agreeing with markdoiron and omnichad;
Windows, Apple, Sun...
Tweet is a common word, but I don't see how it couldn't be trademarked in reference to sending a small bit of text over the Internet.

[Internet-Lawyer]

A rejection by the USPTO of a trademark application is not the same as saying that Twitter does not have a trademark in the term Tweet. As an <a href="http://www.web20lawyer.com">Internet Lawyer</a> I not only frequently register trademarks but also have to send responses to negative office actions such as the one described in the above article. Responses to negative office actions is a normal process in a trademark application. It's an opportunity to clarify exactly what trademark rights are sought. Trademarks are not based on who was the first to file an application. Twitter now has 6 months to respond to this office action. They are in no rush. Wait to see the response. I will bet in favor of final approval.

[samjohnston]

I'd say Twitter will have to take out a few competitors/partners in the process, that it was always descriptive and is now also generic (thus trivial to challenge even if it proceeds to registration), and that in any case it's going to be far more difficult now that it's clear people care about the problem.

At the end of the day Tweet is not Twitter's to trademark - the term grew organically from the users and until very recently Twitter execs were apparently embarrassed by it when they should have been protecting it. Refer to the original source for some interesting commentary on the situation.

[MadLyb]

Tweety Bird will crush all who use his name with the help of that Puddy Tat.

[eagunner]

I just tweeted in my pants.


And by that, I mean I posted to twitter while wearing pants.

[cnet_user_0]

Why don't they jump on 'twit' instead of 'tweet'?!

[Harrison912]

Very interesting. I mainly use Twitter to socially markety my safety and security web site so I'm always interested in what's happening there. Thanks for the info.

[bvdon]

The only use twitter has is for marketing... and once that becomes the majority of tweets I think you will see a decline in usage.

[ZetaZeta_]

I think after a while the large volumes of people who jumped onto Twitter will start to fail to see the appeal and migrate to the NextBestThing or something that is more shallow to match the depths of their imagination.
I see the people who actually use Twitter as something other than a gimmicky way to send status updates (a Corporation that releases news updates, a blog that links to its posts, a game company that releases spoilers, an artist that tweets tour dates or twitpics of the audience, etc. and their followers) will stick with it, and you'll have a niche service filled with people who put the system to good use.