Written by: Nicholas Holmes

Last week, the CEO of Twitter, Elon Musk, announced that Twitter would be re-branded simply as “X.” Upon the new “X” logo being unveiled on most users’ phones, confusion was almost instant. As one friend put it, “I thought it was my Comcast Xfinity app.” This abrupt brand change came as a shock to both the social media community at large and the trademark community. Twitter is synonymous with the blue bird logo; show nearly anybody the logo and they will immediately know it represents Twitter. Words such as “tweet” are common vernacular and registered as trademarks. So, why would a company, who has spent years of time and poured inordinate amounts of capital into branding and advertising to become a worldwide recognizable brand, change the company to a single letter “X?” Better yet, why would the company not perform a trademark search prior to this change?

A trademark search can be crucial in determining whether to proceed with a proposed brand name or mark and whether to file a trademark application with the United States Patent and Trademark Office (“USPTO”). While a trademark search is not the end-all-be-all when it comes to determining the viability of a mark (stylization of the mark, the goods and services applied for in the mark, and the date of use are all relevant), it at least provides a landscape as to how popular the proposed mark is, and whether there are any identical marks that have been registered with the USPTO. A search is rather straightforward and can help prevent litigation – and headaches, down the road. Owners of trademarks can claim infringement if other branding would cause consumer confusion. For example, the Cleveland Guardians, formerly known as the Cleveland Indians, submitted a trademark application for the mark “Guardians” in connection with various apparel goods and services. If even a basic search was completed, the team would have noticed that the Cleveland Guardians, a roller-derby team based in Cleveland, had already filed and registered the mark “Guardians” in the state of Ohio. The roller-derby team filed suit, but the two entities were able to resolve the matter amicably. 

With respect to the mark “X,” a quick search of the USPTO’s trademark database would show that there are over 1,000 registered trademarks, many of them involving software, that comprise the word “X.” In fact, rival social media company Meta and technology giant Microsoft have registered and owned an X trademark since 2019 and 2003, respectively. Both are registered in connection with software. Further, with the ubiquitous use of the letter “X” in trademark registrations, Twitter will likely only receive an extremely narrow scope of protection – if the mark is to register – in the “X” mark. The fact that two rival companies, along with thousands of others, have federal protection in marks comprising “X,” it is more likely than not that Twitter’s “X” mark will be opposed at the USPTO and lawsuits filed at the state level. This could result in years of litigation and millions of dollars of legal fees, or, hundreds of millions of dollars to settle or obtain the rights to confusingly similar trademarks. 

With Twitter and its blue bird logo having so much market and brand power, both in the legal sense and social sense, it is puzzling as to why Twitter would want to rebrand to a single letter that is so pervasive in society, potentially handicapping the legal protection and market capabilities of the social media platform. Whether you are a professional sports team, social media giant, or a solo entrepreneur, a trademark search is a fast and efficient way to understand the branding environment in relation to your proposed mark. It will be fascinating to see whether skipping this vital step will prove costly to Twitter, or whether this is all part of Elon Musk’s plan to get us trademark attorney’s buzzing. Stay tuned!