Why Not Follow Twitter's Example on Trademark Enforcement?

Mike Masnick at Techdirt has a typically provocative post this morning on the subject of Twitter's laissez faire approach to trademark enforcement. Depending on your outlook, Twitter has either been shrewd or careless when it comes to the Twitter mark (U.S. #77166246). Twitterific, Tiny Twitter, Twitterberry, MadTwitter, TwitterFone, Twitterholic, Twitter Karma, TwitterBuzz, Twitterdex, Twitterlocal, TwitterPoster, TwitterCounter, and dozens of other third-party applications have set up shop on the Twitter mark, all apparently without objection from Twitter. Twitter's API documentation is bereft of trademark protection language.

Masnick holds Twitter up as an object lesson for other trademark owners. He thinks trademark owners might improve their company's image if they'd just lighten up, and he blames lawyers for what he sees as over-aggressive trademark protection:

People (often lawyers) seem to think that just because you can block a business for using a trademark, that it's a good business decision to do so.

It's an interesting and respectable argument. Who can argue with Twitter's success? But the point about lawyers is not accurate. Today, in 2009, all lawyers dealing with online media -- and that includes trademark lawyers -- are well-aware of the challenges of reputation management. They know that any C&D they send could wind up on a hundred Web sites, adorned with ridicule heaped upon their clients. They are able to make nuanced judgments about these things. They are able to balance the pros and cons of enforcing their clients' marks in each situation that may arise. Really, they are.

Masnick cites Monster Cable's questing against Monster Mini-Golf and Monster Transmission as examples of trademark owner zealotry. He could be right. However ... unlike Twitter, Monster Cable makes cables not data. Monster does not need developers to build complementary applications. Monster Cable is not going to benefit from the network effects that are pushing Twitter into the center of many individuals' online activities. Unlike Twitter, where every use of the mark raises public awareness and heightens demand for Twitter's data, every use of the term "Monster" diminishes (in a small and entirely lawful manner) the value of "Monster" as an identifier of the source of cables and other electronic whatnot.

A better candidate to trot out and flog is Facebook, a business that is similar to Twitter in a lot of respects. Facebook benefits from network effects, and developers who make Facebook apps are business partners not competitors. How does Facebook treat its application developers?

From the Facebook Developer Terms of Service:

You may not use the terms "Facebook" or "Face" as any part of the name of your Facebook Platform Application, including without limitation "Facebook [application name]", "[application name] on Facebook," "[application name] for Facebook," or "Face[application name]." Further, you may not use the term "Facebook", or variations or misspellings of Facebook (e.g. FBOOK), in the name of a URL to the left of the top-level domain name (e.g., ".com", ".net", ".uk", etc.) -- for example, URLs such as "facebook.xxx.com", "faacebook.com ", or "facebookprofiles.net" are expressly prohibited. Other than your limited right to use the Marks in a non-trademark manner as provided in this Agreement, you may not make any use of the Marks. Facebook and its licensors retain all right, title and interest in and to the Marks, and all goodwill arising out of any use of the Marks by you will inure to the sole benefit of Facebook. You will not at any time now or in the future challenge or assist others to challenge the validity of the Marks, or attempt to register confusingly similar trademarks, trade names, service marks or logos. You agree to follow any Trademark Guidelines established by Facebook with respect to your use of any Marks as those guidelines may change from time to time. You must immediately discontinue use of any Mark as specified by us at any time in writing. We may modify any Marks provided to you at any time, and upon notice, you will use only the modified Marks and not the old Marks.

This is tough, old-school trademark protection language. Twitter shares, Facebook hoards the value of its marks. "Facebook and its licensors retain all right, title and interest in and to the Marks, and all goodwill arising out of any use of the Marks by you will inure to the sole benefit of Facebook." Apple Inc. takes a similar approach. Have these businesses' tight grasps on their marks cost them the dramatic growth that Twitter has experienced in the last year or so? I don't know the answer to this question, but I do know that it involves business judgment not legal judgment. How much money has Twitter made anyhow?

Venkat Balasubramani has blogged quite a bit on Twitter and trademark issues on his Spam Notes blog.

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Follow me on Twitter at @bnatechlaw

Comments

[Venkat]

My instinct is that Twitter isn't necessarily making a deliberate choice (either about this or control over content/Twitter-feeds). I predict we will see some activity in the near future around this in the near future.

Tying aggressiveness of brand enforcement to money is a real stretch. People like to bash Apple for being overly aggressive in protecting its product plans, but just think if they weren't, the iPhone probably would not have come out with clear room to run.

[brncnnr]

What's interesting about this post is the complete absence of "consumer protection" concerns. Trademark law is structured to protect the consumer, not generate revenue for the owner. With several third party applications making use of Twitter's mark, the likelihood of consumer confusion increases dramatically. But this isn't discussed and I'm left wondering why.

It's possible that "Twitter" might resist the kind of "genericide" that laid claim to Kleenex; consumers are probably savvy enough to identify one micro-blogging service from another. But it's less likely that they are savvy enough to identify the micro-blogging service that Twitter offers (and which is identified by the mark) from the ancillary services from third party applications.

Consumers using these third party services under the assumption that their quality is commensurate to the micro-blogging service may be sorely disappointed. Even more disappointing would be the dismissal of attendant complaints made to Twitter. "We at Twitter take no responsibility for these ancillary applications. We merely support them."

By permitting these third parties to use its mark, I wonder if Twitter isn't attempting to grow its brand while at the same time externalizing the risk of consumer dissatisfaction.

[Thomas O'Toole]

brncnnr you're right, I have a blind spot here. And I may not be representative of the majority of consumers. But not even for a second have I considered the possibility that there could be a same-source connection between Twitter and Twitterific, Tiny Twitter, Twitterberry, MadTwitter, TwitterFone, Twitterholic et al. Nor does the TWITTER brand mean anything to me as far as the "Twitter experience," the reliability of the site, or the way they handle my personal data. I'm used to the whale, the experience arises from the people on the site, Twitter is simply shoveling data. I think everybody gets that. Right now, sitting in this chair, if I was forced to think about the TWITTER brand, I'd say that anything that might be important to me has already been spelled out -- in language that leaves Twitter with no responsibilities toward me whatsoever-- in the terms of service. And I'm good with that. I wish I had a more sophisticated view of trademark law as it relates to sites like Twitter; but, as a consumer, I can't fathom what interests of mine are supposedly not being protected here.

[AC]

I have to strongly agree with you. Masnick and his "economy of free" cohorts love to praise extremely loose IP enforcement, and blast even moderate IP enforcement, but in the very few stories that he finds which exemplify his ideals, they're all small artists and bands no one has ever heard of. And there are absolutely no movies that have been made successfully on the economy of free. A few have been collaborative works mass distributing the cost among workers, or the producer collected a "pay what you want after you watch" fee, but they're few and far between, and none of these has even come close to breaking even. Youtube, Pandora, and Twitter are some of the biggest players in the "economy of free," and they're so far in the red, you'd think they were bleeding to death.

It's one thing to have moderate IP enforcement (i.e. loose or no DRM), but the market has clearly shown that the overwhelming majority of people are still willing to pay for content. When it comes to making money, top tier brands simply can't rely on the "economy of free."

[jjray]

Those arguing for tight IP enforcement by twitter must keep in mind it's business model and consider it above and beyond the legal implications. Twitter is a publication medium whose meteoric rise has been in large part due to third parties. Twitter is, in many ways, an open source online app. Facebook is the opposite, it's closed. Only your friends can view your facebook page. No third party publishes facebook USG (user generated content). Twitter is a publication device that relies on third party publication not unlike youtube. So, do you bite the hand that feeds you?

[Sam J]

Ironically in the days leading up to this post Twitter, Inc. had applied for a spate of trademarks and are now no doubt wishing they had paid more attention to this issue:

Twitter's "Tweet" Trademark Torpedoed

Sam