Twitter and Trademark, Subtweet Zachary Hiller Law Houston TX

Big news in tech and trademarks, two categories near and dear to my heart. Twitter just recently filed to trademark the term “subtweet.” For those of you who don’t follow the social media platform, a subtweet is a post in which you talk about someone without tagging their Twitter handle directly. It is the micro-blogging way to essentially talk behind someone’s back. Not that Twitter is in the gossip business, at least not directly. So what does this filing mean for the platform? That is where a better understanding of trademark law comes into play.

Twitter and Trademarks

Twitter and Trademark, Subtweet Law Office of Zachary Hiller Houston, TX

Twitter recently filed for trademark protection for a number of terms including the word subtweet.

In order to understand the importance of the filing a basic understanding of trademark law is helpful. A trademark is used to distinguish a product or service as coming from a particular source or brand. They can be recognizable names, symbols, signs or phrases. These are commercial marks only, meaning Twitter can only limit its use in a commercial setting. So no one would be legally allowed to create a new brand of t-shirts or coffee mugs emblazoned with “subtweet” across the front, at least not without a licensing agreement from Twitter.

Subtweet is not the only phrase Twitter is looking to trademark. Recent filings include the word created to describe a series of numbered posts on a topic, AKA “Tweetstorm”. According to a Forbes article, Twitter also sought to trademark cotweet, retweet and Viners as well as revine. (Referring to its subsidiary Vine.) What makes many of these words unique is that they come from the parlance of the users of the brand, not the brand itself. These are words created by Twitter users about the platform that have become their own colloquial language so to speak.  The word subtweet started to pick up steam in 2010 according to Google Trends and slowly made its way into common use. So why would Twitter chose to trademark the slang terminology of its users? After all, it seems unlikely that there is a large commercial use for many of these terms.

The reasoning is quite simple in the context of trademark law. If you don’t use it, you lose it. Twitter learned this the hard way when it tried to trademark the term Tweet, and failed because 3rd party app developers had been using the word commercial for years before Twitter filed for trademark protection for the word. In short, by not enforcing its ownership of the word “tweet” with trademark protection Twitter lost its ability to exclusively claim the word.

Some of these other phrases lack the same developer use, so it is unlikely that Twitter will face much opposition to these trademark applications. And, if they are successful, Twitter can ensure they control the use of the branded words in commercial settings. In a statement to the online magazine, The Verge, Twitter provided their rationale, ” When you need to protect your namespace from people who would misuse it. #keepingit100. We aren’t sure who exactly Twitter is protecting their namespace from exactly… It sounds like a #subtweet to me.

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