Trademark Attorney Morris Turek

Morris E. Turek

(314) 749-4059

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Twitter v. Trademark Oppositions Worth “Following”

Since I’m an equal opportunity kind of guy, I’ve decided to write a little something about Twitter this week after devoting last week’s blog entry to Facebook (which, by the way, got a couple of “likes” after I posted it on my wall).  Perhaps some of you Twitter addicts out there will similarly show me some love by tweeting a link to my blog post to all of your followers.  And, if you want to show me BIG love (and why wouldn’t you?), start following me on Twitter to get all the latest and greatest trademark news.  I promise I won’t tweet about what I had for dinner or how many bananas I bought at the grocery store.

Anyway, unless you have been living on another planet since August 2006 (or maybe logged onto Facebook all day), all of you know that Twitter is a social networking and microblogging service that enables its 100 million registered users to post brief messages up to 140 characters that are displayed on their profile pages.  These messages are called “tweets” and, according to Wikipedia, there are an incredible 65 million tweets posted each day (the vast majority of which are about as intellectually stimulating as watching paint dry).  As you might expect, Twitter is the owner of a federal registration issued in 2009 for TWITTER (Reg. No. 3619911), which is registered for what amounts to social networking and telecommunications services that allow individuals to send and receive messages.  In addition, Twitter recently became the owner by assignment of a registration for COTWEET (Reg. No. 3780175), which is basically a software platform that help businesses market themselves using the Twitter service.  Also, Twitter has pending applications for TWEET (Serial No. 77715815) and RETWEET (Serial No. 77804841), both of which seek registration for services identical to those identified in its registration for TWITTER.

In early 2009, a Kansas company by the name of, LLC filed three separate trademark applications seeking registration for TWITTER (Serial No. 77711787), TWEETME (Serial No. 77742436), and TWEET.ME (Serial No. 77742449).  These applications were filed on an intent-to-use basis and are for a variety of different products, including clothing, bumper stickers, pens, greeting cards, stationery, and other types of novelty items.  The Trademark Examining Attorney allowed all three applications to be published for opposition (although she did initially refuse registration of TWITTER on the basis that it was likely to cause confusion with Twitter’s prior registration for TWITTER and that it falsely suggested a connection with Twitter).  To the surprise of absolutely nobody, Twitter filed extensions of time to oppose the three applications while it further investigated its potential claims against Teeshirtmania.

Well, on August 25, Twitter took the plunge and filed notices of opposition against each of Teeshirtmania’s applications (Opposition Nos. 91196233, 91196240, and 91196275).  The oppositions against TWEETME and TWEET.ME are based on Twitter’s prior rights in its COTWEET and TWEET marks and allege a likelihood of confusion and dilution of its famous marks.  The opposition against Teeshirtmania’s TWITTER application is obviously based on Twitter’s prior rights in the TWITTER mark and similarly alleges likelihood of confusion and dilution, but also throws in for good measure a claim for false suggestion of a connection.  Teeshirtmania now has until the beginning of October to respond to the oppositions.  If Teeshirtmania chooses not to defend the oppositions, a default judgment will be entered against it and its applications will go abandoned.

Although not quite to the extent of Facebook, Twitter has been aggressive in going after those it believes are attempting to trade off of the notoriety and fame of its valuable trademarks.  Twitter has recently filed an opposition against an application for LUVTWEET, and is currently considering or has considered pursuing oppositions against:

DIPURTWEET (Serial No. 77935249)

TRAVEL TWEETS 100 (Serial No. 76700251)

TWEETSTAKES (Serial No. 77738012)

TWITTER (Serial No. 77755843)

TWEETWORLD (Serial No. 77704250)

TWITANIC (Serial No. 77735852)

TWITATAP (Serial No. 77719784)

So, I think the bottom line is that if you’re thinking about adopting a mark that resembles TWEET or TWITTER, you better prepare for a possible challenge by Twitter.  But, honestly, now that you’re informed and know that such a challenge is more likely than not, you might want to consider coming up with some other trademark that won’t require taking out a second mortgage to register.

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