Twitter trademarking the term subtweet – is it necessary, is it right?

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You’ve certainly heard by now that Twitter is trademarking the term subtweet. A subtweet being a sort of anonymous tweet (which Twitter previously tried and failed to trademark) talking about someone without using their Twitter handle. This action has less to do about controlling the use of the term, which has already percolated far and wide through the Twitter-verse, and more about protecting the Twitter brand.

Trademarking isn’t new

You may wonder how a phrase that arose organically through use by millions of people can be trademarked, but the practice isn’t that uncommon. Apple (and Scholastic Inc., among other companies) has actually trademarked the word “apple”.

Taylor Swift is trying to trademark several phrases from her 1989 album including “Party like it’s 1989” and “This sick beat”. Infamous announcer Michael Buffer has a trademark on the phrase “Let’s get ready to rumble!”

But it isn’t always necessary

Some attempts at trademarking have more merit than others. It’s hard to imagine that legendary introduction without thinking of the boxing announcer Michael Buffer.

It’s more difficult to argue that the word “yup” is closely associated with the branding for former Storage Wars reality star Dave Hester or rapper Trey Songz, who entered into a legal dispute over who had the right to use the word on merchandise.

Protecting your brand

Legally, a trademark is any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods. The United States Patent and Trademark Office (USPTO) awards trademarks based on whether use of these words or phrases by other commercial entities would result in confusion among consumers.

Thus Apple can trademark “Apple” because a product using the word would mislead consumers into believing it was produced by the tech giant. However, that trademark doesn’t apply to other industries, so a car manufacturer would be free to name a car the Apple and grocers are still free to use the phrase, because there is little risk that there would be consumer confusion.

Protecting your customers

Twitter was initially unable to procure a trademark on the word tweet because the company Twittad filed a year before the social network. Twittad argued that they were free to register the word because it originated through public use, but it’s difficult to agree that any instance of the word tweet, when referring to a social media action, could be associated with anything but Twitter. Similarly, subtweet could reasonably be argued to be closely associated with the Twitter brand.

When trademarks are used correctly, as in the case of tweet and subtweet, they actually protect consumers. Restricting commercial use of the words to Twitter ensures that other companies aren’t able to sell products or services that imply they are associated with the brand. Users themselves are still free to say tweet and subtweet, which is how a trademark should be used.

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