Avoid Trademark Infringement of Twitter and Facebook

This article will provide an overview of the concept of trademark and what you should not do if you want to avoid trademark infringement with Twitter and Facebook.

Twitter and Facebook are trademarked terms. Twitter is application number 77166246 at the United States Patent and Trademark Office. And Facebook is 77039123. And Facebook is attempting to trademark the word "face" under certain uses of the word (as reported by TechCrunch and other online media).

But that is besides the point. A trademark does not need to be registered in order for it to be a trademark (that is according to United States laws; other countries may differ). There are many other trademarked names that are not registered in any government office, yet they still hold trademark status.  Trademark comes about through use and consumer awareness, not by filing a piece of paper.

Even if Twitter and Facebook had not filed, they would still be trademarked terms simply because most people are familiar with the Twitter and Facebook brand name.  Of course, there are advantages of having the name registered, if and when conflict arises.

The "TM" symbol denotes an unregistered trademark.

The "SM" symbol denotes an unregistered service mark

And ® (the R with the circle) symbol denotes a registered trademark. 

Here is how to type them on your keyboard.

Purpose of Trademark

According to the "The Yahoo! Style Guide", the purpose of trademark is to establish brand identity:

"Companies and individuals establish trademarks to protect the identity of their brand, products, or services and to keep consumers from being confused about the source of those products and services. A trademark can be a word, phrase, symbol, or design or a combination of words, phrases, symbols, or designs (or even, in rare cases, sounds and smells) used to identify and distinguish the goods or services of one party from those of others."[source]

Trademark Infringement

When you use a word or symbol that is identical or similar to Twitter and Facebook such that there is a likelihood of consumer confusion with that Twitter and Facebook brand, then you are in violation of trademark infringement.

How do you know if there is a "likelihood of consumer confusion"? That is determined by the court of law when Twitter or Facebook bring suit against you.

Article on cyber.law.harvard.edu says ...

"the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods."[source]

Courts will weigh various factors to make the determination of confusion or not. Also courts will take into account whether the use is permitted under fair use, nominal use, or parody.

Taking a hypothetical example, "Apple Computers" and "Happy Apple Farms" may possibly coexist since consumer is not likely to confuse one for the other (even if both of them has the words "Apple").

Even if there is no confusion involved, Twitter and Facebook can still file suit for "trademark dilution". Under US law, this suit only applies to names that are "famous". What is considered "famous" is again determined by the court of law. But it is safe to assume that Twitter and Facebook are pretty "famous".

Dilution occurs when you "blur" or "tarnish" the "famous" mark.

Here is an example of dilution ...

In the FAQ of Facebook website, there is the question "Can I use Facebook in my business name or domain name?"  And here is their answer ...

"No. Use of the Facebook trademark or something confusingly similar in your company name or domain name, even in connection with goods/services that are arguably unrelated to those offered by Facebook, can both create consumer confusion as well as dilute the distinctiveness of the Facebook brand and weaken Facebook’s trademark rights."[1]

Facebook also says ...

"You may not present or feature the Brand Assets on websites containing content associated with pornography, gambling, or illegal activities."[1]

for fear that it might "tarnish" its brand name.  So that is an example of tarnishment.

Facebook Brand Permission Center

In the same spirit, the Facebook's Brand Permission Center says that you can not use Facebook brand assets...

  • in deceptive, harmful, obscene, or objectionable manner
  • that suggests association, approval, sponsorship, or endorsement
  • in combination with your own name or mark
  • and others

Facebook does not require that you use the TM or ® symbols next to its name.  You may scale the size of the "f" logo, but not modify it. Facebook makes certain brand logo available for use under Facebook Badges or Widgets.

Facebook says that screenshots of Facebook can not be altered nor contain personally identifiable information (unless you have written consent from the user).


Use of the Twitter Trademark

Twitter has similar Guidelines for Use of the Twitter Trademark which says not to create your own buttons or marks using their logos. Instead use their logos here or use the words or the phrase "Follow me/us on Twitter".

You can use screenshots of your own Twitter profile or own Tweets, but not other people's (unless you have their permission).

You can not have domain names or website titles with the word "Twitter" in it. Even using the word "Tweet" with trivial modifications in domain name is not allowed.

In titles, phrase it so that it is clear that it is about Twitter, and not by Twitter. “Learn how to such-and-such on Twitter” is okay. "The Twitter guide to such-and-such" is not.

Twitter also reminds us to capitalize the word "Twitter" and "Tweet".  They are afterall brand names; and names are capitalized.

Note:

Article was written April 2011 and is opinion and commentary at the time of writing. This is not legal advice and author is not a legal professional.

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