What just happened?
Closely following HBO’s rebranding to MAX, Elon Musk’s decision to rebrand Twitter to X has been questioned by many in the branding field. There was an immediate reaction. There were hot takes. There was a Twitterstorm…or is that now called an X-storm?
Now that the dust has settled, we want to share our two cents on the Twitter/X brand change. We will leave aside the literal dust settling on the building signage, which included both an apparent misunderstanding while removing the Twitter sign and claimed permit violations for installing a giant X on top of HQ.
Turns out, Elon Musk is just like the rest of us.
One of the things we love about working with brands is to help bring our clients’ ideas to life. Sometimes, a client comes to us with a new trademark that they love and cannot wait to roll out Unfortunately, sometimes there are also hurdles – like earlier (use of or registrations for) conflicting trademarks or negative connotations – that are either infringement risks or business/marketing risks (or both!). An important part of clearance is talking through these risks to help clients decide whether the risks are worth it or if it would be best to go a different path, no matter how much the company loves the trademark.
Like many other brand owners, Elon Musk is a guy who loves his trademark.
Musk’s decades-long love of “X,” which he’s proposed as transforming Twitter/X to an “everything app” is well-documented. What differentiates Musk from most brand owners is his very deep pockets. He may be willing to take risks that would scare many other brand owners away.
So about those risks…
Right after the rebrand, the interwebs were aflutter (or atwitter, if you prefer) with purported trademark issues. Many pointed to the hundreds of other U.S. trademark registrations for the letter X, including those owned by rivals Meta and Microsoft.
However, the simple existence of other X marks may not translate into trademark infringement. In fact, in some cases, the more prior marks, the better. As the Supreme Court has noted (quoting the well-known McCarthy treatise), “’[i]n a ‘crowded’ field of lookalike marks’ (e.g., hotel names including the word ‘grand’), consumers ‘may have learned to carefully pick out’ one mark from another.”
So – do we find ourselves in a crowded X landscape? Does the manner of use help or hinder this analysis? Take a quick look at your own phone to see the mobile software applications you may have. Do you see these co-existing P’s?
Do you think these X logos could similarly co-exist?
Beyond use, would there be registration risks? Microsoft’s registration for X in typeset characters for services including “providing on-line chat rooms for transmission of messages among computer users concerning video and computer games” is compelling because this registration does not claim a particular font or style, it is broader than stylized “X” marks.
Notably, Microsoft used Image 2 (the blue and white X), but assigned the registration to Meta in 2020 along with numerous marks associated with Microsoft’s former Mixer video game streaming platform. So, it is possible that the risk of registration is also being settled.
If you’re considering a rebrand, let us know. We might not respond in a mere 280 characters, but we will give you a nuanced analysis of the risks associated with the trademark you love.