Last month Twitter founder Biz Stone announced in a blog post (May The Tweets Be With You) that they “have applied to trademark Tweet because it is clearly attached to Twitter from a brand perspective“. This understandably caused widespread upset as the word “tweet” has been used generically by users for some time as well as in any number of product names by independent software vendors. Here’s some samples from the resulting media storm:
- CNET News: Is Twitter freaking out over ‘tweet’ trademark?
- TechExpert: Twitter Trying to Trademark “Tweet”
- LA Times: Will Twitter trademark ‘tweet’ before it’s genericized?
- PC Magazine: Twitter Trying to Trademark ‘Tweet’
- TechCrunch: Twitter Grows “Uncomfortable” With The Use Of The Word Tweet In Applications
- TechCrunch: Twitter To Developers: “Tweet” Your Heart Out, But Don’t “Twitter” It
- Bloomberg: Twitter Lays Claim to ‘Tweet’ Trademark in Bid to Protect Brand
What they failed to mention though was that according to USPTO records (#77715815) not only had they actually applied some months before (on 16 April 2009) but that their application had been refused that very same day (1 July 2009).
According to documents from the Trademark Document Retrieval system, their lawyers (Fenwick & West LLP) were notified of the rejection by email to firstname.lastname@example.org that day. The USPTO had explained that “marks in prior-filed pending applications may present a bar to registration of applicant’s mark. […] If the marks in the referenced applications register, applicant’s mark may be refused registration under Trademark Act Section 2(d) because of a likelihood of confusion between the two marks“, referencing and attaching not one, not two but three separate trademark applications:
- #77695071 for TWEETMARKS (pending receipt of Statement of Use)
- #77697186 for COTWEET (pending clarification)
- #77701645 for TWEETPHOTO (pending transfer to Supplemental Register)
Now I may not be a lawyer (I did play a role in overturning Dell’s “cloud computing” and Psion’s “Netbook” trademarks) but given all three of the marks identified look like proceeding to registration (it only takes one to rain on their parade), it’s my non-expert opinion that Twitter has a snowflake’s chance in hell of securing a monopoly over the word “Tweet”.
That’s too bad for Twitter but it’s great news for the rest of the community as it’s one less tool for locking in Twitter’s rapidly growing microblogging monopoly. People do use the word “tweet” generically (including with non-Twitter services) and if Twitter, Inc. were successful in removing it from the public lexicon then we could all suffer in the long run.
In any case it is neither serious nor safe for one company to become the “pulse of the planet” and that is why I will be following up with a series of posts as to how distributed social networking can be made a reality through open standards (if that stuff is of interest to you then subscribe and/or follow me for updates). I’ve also got some interesting things in the pipeline in relation to standards and trademarks in general so watch this space.
Anyway it just goes to show that with trademarks you need to “use it or lose it”. The “propagation delay” of the media has dropped from months at the outset to near real-time today so companies need to move fast to protect their marks or lose them forever. As for whether the 1 July post was a scramble to protect the mark on receipt of the USPTO’s denial, whether the USPTO was acting in response to it, or whether it was just a coincidence and particularly bad timing I don’t know. I don’t really care either as the result is the same, but I would like to believe that the USPTO is becoming more responsive to the needs of the community (after all, they revoked Dell’s cloud computing trademark in the days following the uproar, despite having already issued a “Notice of Allowance” offering it to them).
Update: It turn out that USPTO most likely acted in response to Twitter’s 10:37am blog post as (after months without action) they conducted an XSearch at 8:30pm and sent the rejection notice at 9:00pm. I’d chalk that up as a FAIL for Twitter and a WIN for the USPTO.
Update: See also: The Inquisitr: No Tweet trademark for Twitter, complete with the hilarious graphic at the top (used without permission but with thanks to the creative genius at The Inquisitr).
Update: See also: CNET News: Not so fast, Twitter: ‘Tweet’ isn’t yours, which is a good, balanced, albeit unsourced article.