The Shady Side of the Tweet

TechCrunch reported this morning about an email conversation between Twitter and a third-party developer that had created a service very similar to Twitter's. One phrase raised TC's eyebrows—and mine:

Twitter, Inc is uncomfortable with the use of the word Tweet (our trademark) [...]

I wasn't the only one who hadn't known that Twitter had trademarked "Tweet," but sure enough, a visit to the USPTO website reveals that Twitter, Inc., filed for protection of "Tweet" on April 16, 2009. (I can't link because the search will have expired; if you care to check, this "Tweet" is the ninth record in a list of 31.)

A few questions:

• Twitter, Inc., was founded in March 2006 and launched its service in July of that year. But it didn't file for trademark protection of "Twitter" until April 24, 2009. Why the long delay?

• Trademark protection of "Tweet" will not affect informal use of the term as a noun or verb (e.g., "Did you read Joe's tweet about that?"). But will it affect businesses that use "Tweet" in their names (e.g., Tweetdeck, Tweetie)?


• Twitter owes its phenomenal growth to third-party developers—to whom, it should be noted, Twitter has given open access to its API. Is this recent move a matter of biting the hand that feeds them, as trademark lawyer Jessica Stone Levy writes in a blog post?

(In an update to the TechCrunch post, Twitter founder Biz Stone explained, not unreasonably: "[W]e encourage developers of new applications and services built using Twitter APIs to invent original branding for their projects rather than use our marks, logos, or look and feel. This approach leaves room for applications to evolve as they grow and it avoids potential confusion down the line")

By the way, the comments on the TechCrunch post reveal several common misunderstandings about trademark:

• "Can they trademark 'tweet'? Looks like an ordinary word to me." "Ordinary words" get trademark protection all the time: consider apple, dove, and twine. To be strong trademarks, they can't be used descriptively—you can't have Twine brand twine or Apple brand apples. But as metaphors or arbitrary marks, they're one of the pillars of brand naming.

• "Put a copyright on a dictionary word? Yeh." I think this commenter was saying something similar to the previous commenter, with a sarcastic twist. Two objections: "dictionary words" are turned into brands all the time; and the legal term is trademark, not copyright. Trademark protects goods or services; copyright protects a form of expression such as a musical or literary work. And patents protect inventions. (Here's a good summary from the USPTO.) By the way, the past tense of copyright is copyrighted, not "copywritten."

• "I’ve reserved around 100 domains with the term tweet in them ... although I didn't do a trademark search." You can't "reserve" domains; you either buy them (more accurately, rent them) or wish you'd bought them. And if you're starting a business—and from his subsequent comments, it's clear this person is—it's ill advised to stake a claim on a name without checking its trademark status. And yet I see it all the time. At the very least check the online trademark database; to be really safe (and well informed), have a trademark lawyer do a comprehensive review. Domains are cheap (and not as hard to find as some people think); trademark litigation is expensive. An ounce of prevention, etc.

UPDATE: Thanks, Karen, for leaving the comment about the Twitter blog post, which I hadn't yet read. As Twitter founder Biz Stone writes, it all comes down to likelihood of confusion. 

Comments

[Juli]

Nice summation. Though my tangential mind immediately wonders, did they also trademark "twiddly diddly deet"?

[Karen]

The Twitter blog also said this: "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."

[Bob Cumbow]

I love what you're doing here, but have to remind you and your commenters once again that "trademark" isn't a verb--at least not in the way it's being used here. Twitter has adopted the term TWEET as its trademark, and has used it as a trademark. It therefore has rights in the trademark (with or without federal trademark registration, which is beneficial but optional). Twitter has not "trademarked 'Tweet.'" They have trademarked their services, by offering them under the trademark (or brand) TWEET.
But thanks for clearing up the person who didn't know a trademark from a copyright. Slowly but surely, everyone is starting to catch on, and you're helping a lot.

[Nancy Friedman]

Mea maxima culpa, Bob, and I do understand that "trademark" isn't technically a verb. But to your other point, it seems to me that Twitter isn't offering services under the name "Tweet." It's merely protecting the use of "Tweet" so that rivals don't use it in a confusing manner. In fact, it was Twitter *users* who came up with "tweet" as noun or verb. Twitter's founders always referred to the activity as "status update."

[Axle]

IANAL but don't you have to protect your TM to preserve it? Ex. The "Elevator" brand became generic because it was not protected? So isn't it contradictory for Twitter to then say they won't pursue users. BTW, did you know that the twitter bird is stock art? Bought from istockphoto.com. That's why so many people are using the same image for their apps. Ex. Twitterific which I'm using on my iPhone right now.

[Rachel]

@Axle: I also noticed the stock art when Twitter first launched. It's curious to me that it's still in use because that violates iStockPhoto's very specific licensing rules, i.e., no stock art can be used in logo/trademark. The usage is questionable, IMO.

And yes, Nancy, Twitter did announce that applications, etc., using 'tweet' in the name are fine.

As to why they waited so long... given what clients do every day that makes no sense, does that really surprise you... lol?

[NextMoon]

As an active tweeter, I was confused by the initial report. I'm glad to learn that apps like TweetDeck and Tweetie won't be affected, and neither will those of us who tweet regularly. I really appreciate your thorough explanation, especially the advice regarding domains. And thanks to Bob Cumbow, too, for his reminder that "trademark" is a noun.