Protecting Twitter with T(w)ademark

by Tamera Bennett The news has been a twitter about Twitter®, the social networking site, filing a trademark application for the word TWEET, and the current status of the application being  suspended pending the outcome of prior filed third-party trademark applications that contain the term "tweet."

In researching this issue I found something  that should be of a little more interest to the folks at Twitter.  Take a look at the trademark below for TWEETPHOTO.  Does it look familiar to you?  Would you think this brand and the services offered are associated with Twitter?

Compare to the Twitter trademark:

There is a registered trademark for the word TWITTER without design owned by Twitter, Inc.   Twitter, Inc. has a pending trademark application for the stylized version above in black and white.  A black and white registration extends to protect a trademark used in color.

The TWEETPHOTO trademark application has been initially refused as descriptive of the services offered under the mark:  Providing a web site that gives computer users the ability to upload, exchange and share photos, videos and video logs.

In the initial refusal (office action) the trademark examiner stated:  The relevant definition of ‘tweet’ is “[a]n entry posted on the microblogging  service Twitter.” [.] The relevant definition of ‘photo’ is “photograph.” [.]  Thus, the term ‘tweetphoto’ means an entry posted on Twitter to which a photograph is attached.

Two points to ponder:

1.  Does TWITTER  have an actionable claim against TWEETPHOTO, not because of the word "tweet" but because of the look and feel (unfair competition claim) of the TWEETPHOTO mark?

2.  Has a trademark examiner just made a ruling that TWEET is generic as related to the services offered by Twitter?