Since Elon Musk’s takeover of Twitter, major controversial changes have been implemented to the social media network and at the company itself, such as tweet viewing limits, purchasable blue ticks and mass staff lay-offs. Musk’s latest announcement, that Twitter will be re-branded to “X”, has caused endless streams of online commentary, some of which concern the existing trade mark rights in the letter X.
Musk appears to be fond of the letter X. Twitter, Inc. is no more, and has changed to X Corp. since Musk’s acquisition. Many of you will also be aware of SpaceX, Musk’s space exploration company, and Model X, one of the Tesla electric car models. In fact, the letter X is prevalent in brand names across a range of industries, for example, Xbox, iPhone X, X Men, ITV X, the list goes on. It is not surprising that there are many trade mark registrations of the letter X, given its popularity. There are a few X trade mark registrations in particular that have been thrust into the limelight since Twitter’s re-brand, specifically those owned by companies operating in the same industry as X Corp, such as Microsoft and Meta (formerly Facebook). The Meta trade mark registration (detailed below) is perhaps the most intriguing, given that Meta recently launched a new social media network called Threads, which is directly comparable to X (formerly Twitter) in terms of the format of the social media content.
Unsurprisingly, a lot of inaccurate information has been posted online about the existing X trade mark registrations and what they mean for X Corp. In reality, the challenges X Corp may face following this re-brand are matters that Trade Mark Attorneys often advise on, namely, the importance of trade mark searches, the pitfalls of adopting a trade mark without conducting clearance searching, and why it may be best to avoid choosing a single letter as your brand name. Firstly, let’s go back to the basics of trade mark searching.
An existing trade mark registration can be a barrier to the use and/or registration of a new trade mark if (a) it is identical or similar to the new trade mark, and (b) it is registered for goods and services that are identical or similar to those that the new trade mark is used in association with, or is seeking registration for. When these circumstances exist, generally, Courts and Trade Mark Offices will assess whether the public are likely to confuse the respective trade marks, taking into account numerous factors that vary depending on the jurisdiction. If a likelihood of confusion is found, use or registration of the new trade mark may be blocked.
Before adopting a new trade mark, it is therefore usually recommended to conduct searches of the appropriate trade mark registers to attempt to identify conflicting trade marks at an early stage. Actions can then be taken to avoid conflict, such as changing the new trade mark entirely, or adding elements in order to sufficiently differentiate the trade mark. With this in mind, let’s take a look at some X trade mark registrations that individuals and the media have highlighted as being a possible threat to X Corp.
For those who haven’t seen it yet, the new X logo is shown below. At the time of writing this article, X Corp do not appear to have applied for trade mark protection for the new logo in the US, European Union (via the EU IPO) or in the UK.
Microsoft’s US Trade Mark Registration for X, filed in 2000: This is a plain word trade mark, registered for services that may be considered similar to the services that the new X trade mark is being used for, for example “providing on-line electronic bulletin boards for transmission of messages among computer users concerning video and computer games”.
Meta’s US Trade Mark Registration for , filed in 2017 (the UK equivalent of which is owned by Microsoft). These registrations cover services such as “providing internet chat rooms” and “online social networking services”.
Jagex’s UK Trade Mark Registration for , filed in 2020: This registration covers services such as “internet-based social networking services” and “online social networking services accessible by means of downloadable mobile application”. Jagex, a UK based video game developer, have already taken to X (formerly Twitter) to tweet two pictures of their logo displayed in their offices with the caption “We liked the new Twitter logo so much, we had it installed in the office years ago” .
In contrast, Microsoft’s UK Trade Mark Registration for , filed in 2020, which has been shared on X (formerly Twitter) many times, is registered for goods such as computer game software and video game consoles and remote-control units. These services do not appear to conflict with the services that the new X Corp trade mark is being used for currently.
So, other companies do own trade mark registrations for X in the US and UK, some of which cover services similar to those that the new X trade mark is being used for. However, this doesn’t necessarily mean that these rights holders have a slam dunk trade mark infringement case against X Corp. These potential cases raise a debated issue in trade mark law: the scope of protection of a single letter trade mark.
Trade marks must be distinctive in order to be registered, as the main function of a trade mark is to enable consumers to recognise products and services as coming from a particular brand/company. Single letter trade marks can be sufficiently distinctive (at least under US, UK and EU Law) to function as a trade mark providing they have no meaning in relation to the goods and services applied for. However, the fact that there are only 26 letters in the alphabet makes it more likely that others will use the same letter for related goods and services.
Often, rights holders will stylise their single letter trade marks by using a distinctive font or adding decorative elements, in an attempt to make them more distinctive and set them apart from other trade marks of the same letter. When determining the level of similarity of two conflicting trade marks in the context of opposition or infringement proceedings, the overall visual impression of the respective marks is often decisive, as this is likely how consumers will be confronted with the trade mark. In the case of two short trade marks, visual differences will have a bigger impact.
What this means for stylised single letter trade mark registrations is that the rights they provide to the owners are often limited to blocking use/registration of trade marks which are visually highly similar to their registered trade mark, even when the respective goods and services are identical. An example of this limited protection can be seen in the Monster Energy Company v Merck KGaA UK opposition case, where two M marks (shown below) were compared.
(Monster Energy Company)
In this case, Monster opposed Merck’s UK application on the ground that it was confusingly similar to their UK registration for the mark shown above (and other variations of the same mark). The respective marks covered identical goods, however, the UK Tribunal held that consumers would not be confused between the two marks due to the “striking visual differences”, and the absence of the claw marks in Merck’s applied for mark.
In summary, to answer the X (formerly Twitter) users who have questioned whether a single letter can be registered as a trade mark – the answer is yes, for certain goods and services, but its scope of protection may be limited.
The potential limited scope of protection of the existing X trade marks may be advantageous to X Corp for now, as the uncertain outcome of legal proceedings could deter the holders of existing X trade mark registrations from taking action. X Corp will likely acquire a reputation in their X mark should they continue to use it, which may afford them with an enhanced level of protection; however, the scope of protection may still be limited due to the nature of single letter trade marks. Additionally, acquiring a reputation in future does not help to resolve any conflict with the many X trade mark registrations that existed before the re-brand. In comparison, “Twitter” and the related bird logo are highly distinctive trade marks for their associated services and have broad protection due to their global reputation and longstanding use for over 15 years. From a Trade Mark Attorney perspective, it is hard to justify this re-brand, but when the person in charge is committed to the letter X, needs musk!
 US Trade Mark Registration No. 2693757
 US Trade Mark Registration No. 5777374
 UK Trade Mark Registration No. 00801396905
 UK Trade Mark Registration No. 3533840
 UK Opposition No. O/287/20