There’s an interesting story in yesterday’s Washington Post about the ongoing saga involving Twitter’s trademark rights in the word “TWEET.”

Twitter, Inc. is a San Francisco-based company that runs the popular social networking site, Twitter.  Over the last year, Twitter has struggled to determine what rights, exactly, it maintains in the word “TWEET.”  In April, 2009, Twitter filed a trademark application for the word mark  “TWEET.”  The word “tweet” is a verb, referring to act of posting content to Twitter.

The status of Twitter’s rights in the TWEET mark are complicated by the fact that a number of third-parties are using the word “tweet” in software platforms and other applications that are created for Twitter’s users.  These applications have names such as  TweetDeck, TweetMeme, Tweetie, BackTweets, and Tweetboard.   Initially, Twitter tried the “good cop” approach, issuing the following message on the Twitter Blog:

“…we have no intention of “going after” the wonderful applications and services that use the word in their name when associated with Twitter. In fact, we encourage the use of the word Tweet…”

Recently, however, according to the Washington Post article, Twitter has gone after a service called “TweetKnot” for its use of the mark in connection with a Facebook Application.

And although this may seem inconsistent with its earlier message, right from the start (in the very same post to the Twitter Blog, in fact) Twitter has made it very clear that, even if it tries to play “good cop,” it still has every right to play “bad cop” when there is a possibility of damage to its brand:

“However, if we come across a confusing or damaging project, the recourse to act responsibly to protect both users and our brand is important.”

So here’s the million dollar question.  Who owns the rights to the “TWEET” mark?  Right now, however, there is no clear answer.  In January, the United States Patent and Trademark Office (USPTO) issued a Notification of Letter of Suspension in Twitter’s trademark application on the basis that there are a number of pending applications (such as this one for “TWEETMARKS“) containing the word “tweet,” and that the USPTO needed to sort out who had priority over whom.  In other words, Twitter will have to wait and see what rights it has in the TWEET mark.

In the meantime, a more theoretical question looms.  How strong are “tweet” based marks?  We’re all familiar with classic examples of “genericide,” the process by which a mark loses its distinctiveness through the public’s use of the mark as a descriptive term, often a verb.  For example, using the words “XEROX” or “GOOGLE” as verbs may undercut the distinctiveness of the respective marks and, thus, undermine their trademark rights.  So how about the verb “tweet?”  Although “tweet” is obviously derivative of “TWITTER,” it is distinguishable from the XEROX and GOOGLE examples in that it is new word in itself and is not just a use of the mark as a verb.  Is that enough to make it a strong mark?  Who will come out on top in the “Battle of the Tweets?”  You’ll have to stay tuned.  And, in the meantime, we will be tweet– er, strike that– making posts to our Twitter account with all the latest news.

Advertisements