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:
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.