The rollout prompted a barrage of reactions, with both Twitter/X and rival platform BlueSky trending almost immediately. Some of those reactions included speculation regarding the trademark rights Musk’s company-in-transition may have, or be stepping on. It was even noted that a social media rival owns an active “X” registration of its own, though the timing of Twitter’s rebrand may help it if a dispute arises.
Trademark attorney Josh Gerben tweeted that casting aside such a valuable, globally known—and protected—brand as Twitter for an entirely new mark is “unprecedented in history.” He said X Corp., the website’s corporate parent, is sure to be sued, and defending and building the new brand could cost tens of millions or more.
It’s unclear what the future is for the simple X logo that now sits atop the artist formerly known as Twitter’s header. Hours before the rollout Musk tweeted that X.com redirects to Twitter.com, and said “Interim X logo goes live later today.”
But it’s clear that Musk intends “X” to mark the spot for the platform, raising a number of questions about the legal and branding implications.
1. Can a letter be a trademark?
Sure! At least under US trademark law—if there’s no one in your way.
A trademark indicates who produced a good or service, and the law is focused on preventing marks from confusing consumers about who made or endorsed something. Some countries bar single-letter marks. But US trademark law has no such restriction; a mark merely has to be distinct enough that a consumer might see it as indicating that a particular producer made it.
“It’s extremely challenging to clear single-letter marks” because of the sheer number of registrations in the US, trademark attorney Jonathan Menkes of Knobbe Martens said.
A search for “X” as the full mark in the US Patent and Trademark Office database returns nearly 1,000 active registered trademarks, including hundreds in classes involving software. That includes an X for Microsoft’s Xbox and Comcast’s lightly-stylized X for Xfinity merchandise.
But registrations generally block confusing marks only for the particular goods and services the registration covers. Plus, distinct stylization or unique design elements can theoretically make some of the marks sufficiently distinguishable to prevent consumer confusion.
2. Is Twitter Going to Get Sued Over “X”?
It’s unclear, but lawyers generally say there could be a good chance.
A trademark examiner’s survey of existing marks—plus possible objections from existing mark owners—would determine whether X Corp. can register the mark. And in the event of litigation, a likelihood-of-consumer-confusion analysis would determine whether Musk’s actual use of X infringes an existing mark. Such analyses are multi-factor, highly case-specific, and contextual.
“It’s all going to turn on consumer perception, the business realities, who are the customers, what are the services, and what is the other mark,” intellectual property attorney Jennifer M. Lantz of Duane Morris LLP said. “And there’s a huge subjective component to looking at all of this.”
But given the sheer number of “X” marks, attorneys have described litigation over Musk’s move as very likely. And some noted that at least one such mark that specifically covers “social networking” software is owned by a well-heeled corporation with which Musk has already butted heads.
3. Wait, Has Twitter Already Lost?
Microsoft in 2019 registered an X design mark for a variety of software functions including “enabling internet chat and social networking.” That registration could cause a trademark examiner to refuse to register a Twitter X. Facebook—now
But trademarks rights require use, and three years of non-use creates a legal presumption that the mark was abandoned. Microsoft’s X graphic appears in the same style as the word logo of its gaming live-stream platform Mixer, which shut down on July 23, 2020—almost exactly three years ago.
Other “X” marks may also pose challenges if the owners can show their registered goods and services have some relation to social media platforms or anything else Twitter wants its “X” to cover. But if Meta tried to use that registration to block a Twitter “X,” it would likely have to defend against arguments that it’s abandoned the mark.
4. If Twitter Managed to Register X, what could it block?
Even if Twitter managed to register X, the scope of its trademark protections would be fairly limited. With X so widely used, the letter itself won’t be distinctive, meaning consumers won’t see an X that differs slightly from Twitter’s and be confused into thinking it’s Twitter.
“How close is too close is a difficult question in a single-letter situation,” Menkes said. “The less detail, the fewer artistic elements going on, the harder it will be to distinguish.”
That limited reach would make it hard to use trademark law to fight back against scammers and copycats, Lantz said.
In addition, enforcement is difficult in a digital, global ecosystem—which is all the more true when the mark can’t be registered in many other countries.
5. What’s the Value of X’ing the Bird?
Brand valuation is generally regarded as, at best, more art than science. As difficult as calculating a value usually is, doing so for a social media megalith—with few apples-to-apples comparisons—is even less precise given the myriad variables at play. So it will be difficult to measure just how much the change will help or hurt Musk’s business.
But attorneys interviewed by Bloomberg Law said sacrificing Twitter’s bird logo and associated branding will probably do more harm than good. Companies spend millions-to-billions of dollars building a brand, and Musk essentially threw away whatever value the company had built up in consumer recognition and positive associations with the brand.
“Anytime you rebrand you’re getting rid of an asset that had a value,” Lantz said. She added that Twitter must have decided it didn’t mind losing that value or that it could build greater value down the road. She was skeptical of the outlook, though, as terms like “tweet” and “retweet” have entered everyday use.
“I think some of the linguistic usability of the new brand is probably going to end up being more of a consideration than some of the technical trademark aspects. How does it fit in people’s mouths, how does it fit the zeitgeist; that’s something I think is the art of branding that doesn’t get a lot of consideration,” Lantz said. “The connotation for X is often negative.”
