In a recent Delaware district court hearing, US District Judge Connolly deployed a rare facet of US trade mark law to declare Elon Musk’s X platform, formerly known as Twitter, as having potentially abandoned several of the company’s previously iconic trade marks.
The case stems from a US-based start-up firm named Operation Bluebird, who seeks to create a phoenix social media site that replicates Twitter prior to it becoming X, including by using the name ‘Twitter’ in practice. With this goal, Bluebird applied to the USPTO in order to both seek the cancellation of several Twitter-related US trade marks owned by X Corp, which were argued to no longer be in use, and to apply for its own ‘TWITTER’ trade mark.
In the hearing, X Corp argued that it still used the word ‘TWITTER’ in trade, given that it used the term to allow new and existing users to understand that X was the same social media platform as Twitter, albeit re-branded. District Judge Connolly was compelled by this argument, and upheld X Corp’s ‘TWITTER’ registration. Consequently, the judge also ordered an injunction against Bluebird’s use of the ‘TWITTER’ mark, which it had adopted in its domain name. However, the judge declined to order the same sanctions in respect of X Corp’s marks for ‘TWEET’ and the synonymous blue bird logo, with Bluebird since inferring that this decision could result in X Corp’s registrations becoming abandoned due to non-use.
Notably, Elon Musk, owner of X Corp and X, had vocalised his desired departure from the Twitter branding and made several public points as to his decision to cease use of the terms ‘tweet’ and ‘re-tweet’ when making posts on X. In light of this, Bluebird were quick to jump on sustaining their use of these terms as well as adopting a similar bird logo.
Given the USPTO cancellation proceedings against X Corp’s registrations are still on-going, there are still unchartered waters for the dispute to wade into. However, as the parties have agreed a trial date set for November 2027 in the federal court in respect of X Corp’s allegations of trade mark infringement against Bluebird, it will be interesting to see how the respective disputes develop as they run parallel.
If you have any questions on the above, or if you need any advice or support in respect of your own intellectual property, please do not hesitate to contact the team at McDaniels Law on 0191 281 4000 or legal@mcdanielslaw.com.
