Bye bye birdie?

retweet birdLast week we posted about Twitter’s failed attempt to trademark the word ‘tweet’. Another company beat them to it. They did, however, register the word ‘retweet’ as a trademark. But will they be able to prevent this new toy bird?

For sale for about €15,-: a KooKoo bird that retweets everything you say.  It even says so on the box: “I retweet everything you say!”.

Can Twitter act against this (ab)use of their trademark? It depends. Their trademark registration gives Twitter the right to act against anyone using their mark. Check! As long as the use is for goods/services they have protected their trademark for. But Twitter did not register their trademark for ‘toys’.

But not all is lost; if a trademark is famous, the owner can also act against use for goods they did not protect their trademark for. Toys, in this case.

However, Twitter has to be able to prove that the word ‘retweet’ is not only famous, but makes consumers immediately think of Twitter. Although this may seem obvious and easy to do, in practice it is quite hard. It involves lots of documentation, market research and other evidence to convince a judge or trademarks office of the reputation of a particular trademark.

But if Twitter is able to prove reputation, it may well be ‘bye bye birdie’.

Erwin Hauër

“Hope is not a strategy.”

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