0%
Since purchasing the social media stalwart in October 2022, Elon Musk has spared no expenses putting his impression on Twitter. From staff changes to (short-lived) adjustments to the company’s DMCA-compliance policies to removal of celebrity verified account statuses to (briefly) limiting the number of tweets users could see a day, Musk has quite literally uprooted everything and the kitchen sink. But his most recent managerial maneuver has left many in the trademark law community perplexed: rebranding the platform to X.
Founded in 2006, Twitter has matured from a modest, friend-updating status service to the preeminent platform for discourse, commentary, or immediate reaction to anything happening anywhere in the world. Truly a digital town square, Twitter has become a resource as a public forum through which meaningful discussions can be had—internet detectives can solve crimes, and stranded families can receive natural disaster relief information.
As a consequence of the social utility that Twitter has amassed over the years, the platform had developed into one of the most recognizable brands in cyberspace. But then suddenly, the goodwill that had accrued in the Twitter name, logos, terminology (“tweets” and “retweets”), and interface design has vanished with Musk’s decision to rebrand. Analysts estimate that the company has abandoned somewhere between $4 billion and $20 billion in value by switching its brand name to X.
There are numerous trademark implications of this decision. Let’s discuss a few of them:
Elon Musk has long had an obsession with the letter X, and he hopes to parlay that fascination into a one-stop-shop, all-in-one online social media, entertainment, and ecommerce platform. However, obtaining trademark rights for the name “X” will be an uphill battle.
The company owns – and up to this point, maintains – trademarks in Twitter, Tweet, and Retweet, as well as in its bird-silhouette logo mark. If Musk intends to leave these trademarks dormant in favor of X, that is a decision that is within his right to make as owner of the company. But he cannot simply tack these former registrations to carry the same trademark protections to X; instead, the company will need to reapply if it wishes to own federal registrations in the X mark.
And it’s not like Musk’s desired mark is simply for the taking. Numerous X marks in the social media services industry are already registered with the USPTO, including trademarks owned by Meta and Microsoft. Musk’s website therefore not only has major obstacles to trademark registration ahead—it is likely to face trademark infringement lawsuits from these existing X mark owners. In order to obtain the rights necessary to operate under the X mark, former-Twitter will likely face tens of millions in litigation, settlement, and acquisition costs.
Further, because of the succinctness of the new name (only one letter), whatever trademark rights Musk does gain in X, as a name and as a logo, will be limited. For example, Musk will not have the ability to stop every other tech company from using an ‘X’ in its branding; rather, any protection in the X mark will be limited to, say, certain stylization elements unique to the new logo. After all, the primary purpose of trademark law is to protect and uphold consumer expectations; it does not function to provide a trademark owner the right to bar others in an industry from using words (or in this case, a letter) common to that industry. Musk’s social media site is not the first technology company to utilize an “X” in a trademark way, nor will a federal registration in the mark allow Musk to be the last to do so.
This leaves a lot of legal work ahead for the social media platform—work that had already been done for the strong, established TWITTER marks that Musk has so capriciously set aside.
Following Musk’s announced brand name change, several individuals filed for federal trademark protection in Twitter-related marks. Unfortunately for these applicants, they will have to experience the hard way that that is not how the United States trademark system works.
For these new applications to be successful, the existing registered marks mentioned above would have to first be abandoned or canceled under a theory of abandonment. If applicants go forth without either of these first occurring, the USPTO will refuse to register these applications for being confusingly similar to existing marks. Suspending use of a mark, like Musk appears to be moving toward, does not automatically constitute abandonment. Rather, the mark must be expressly abandoned by way of a filing submitted by the registrant to the USPTO. It is unlikely Musk decides to do so.
These new applicants, then, will need to cancel the mark, claiming that the company’s nonuse of the mark constitutes abandonment. However, for such claims, the USPTO requires a showing of three years of nonuse as well as that the registrant, Musk’s X Corp, does not intend to resume use. (A showing of the former creates an inference that the registrant does not intend to resume use, but Musk would then have to opportunity to present evidence to the contrary).
Intent to resume use does not require a showing of specific, definitive plans to resume, so long as some definable resumed-use is planned within the reasonably foreseeable future. What is reasonably foreseeable varies depending on the industry and other particular circumstances of a use; for example, it is not unreasonable for a fire truck manufacturer to go twenty to thirty years between producing vehicles because fire trucks typically last that long, and branding on the vehicles remains apparent for that length of time. It is unclear what a ‘reasonably foreseeable’ time may be for a social media provider, but it is certain that these opportunistic filers will need to wait at least three years before they can demonstrate that Musk legally abandoned the TWITTER trademark.
It will be interesting to watch how this X saga unfolds. This unprecedented rebranding effort has already cost the social media platform billions of dollars in brand recognition and value, and that bill will only continue to climb amid anticipated trademark infringement lawsuits and intellectual property licensing efforts. How Musk is able to manage this blundering trademark situation will certainly be the X-factor as to whether his intended rebrand is successful or whether the now-iced Twitter bird may come home to roost.
To view a version of this article with full citations in footnote form, click the PDF link here.