Texas Trademark Lawyer Tamera Bennett

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Protecting Twitter with T(w)ademark

by Tamera Bennett The news has been a twitter about Twitter®, the social networking site, filing a trademark application for the word TWEET, and the current status of the application being  suspended pending the outcome of prior filed third-party trademark applications that contain the term "tweet."

In researching this issue I found something  that should be of a little more interest to the folks at Twitter.  Take a look at the trademark below for TWEETPHOTO.  Does it look familiar to you?  Would you think this brand and the services offered are associated with Twitter?

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Compare to the Twitter trademark:

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There is a registered trademark for the word TWITTER without design owned by Twitter, Inc.   Twitter, Inc. has a pending trademark application for the stylized version above in black and white.  A black and white registration extends to protect a trademark used in color.

The TWEETPHOTO trademark application has been initially refused as descriptive of the services offered under the mark:  Providing a web site that gives computer users the ability to upload, exchange and share photos, videos and video logs.

In the initial refusal (office action) the trademark examiner stated:  The relevant definition of ‘tweet’ is “[a]n entry posted on the microblogging  service Twitter.” [.] The relevant definition of ‘photo’ is “photograph.” [.]  Thus, the term ‘tweetphoto’ means an entry posted on Twitter to which a photograph is attached.

Two points to ponder:

1.  Does TWITTER  have an actionable claim against TWEETPHOTO, not because of the word "tweet" but because of the look and feel (unfair competition claim) of the TWEETPHOTO mark?

2.  Has a trademark examiner just made a ruling that TWEET is generic as related to the services offered by Twitter?