Elon Musk waves bye-bye birdie to the iconic Twitter brand

Intellectual Property /
John Simpson
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By Tony Poland, LegalMatters Staff • Changing social media giant Twitter’s brand to X is a risky choice but there may well be more to the decision than meets the eye, says Toronto intellectual property lawyer John Simpson.

Elon Musk, who completed a US$44-billion purchase of Twitter almost one year ago, recently announced he has rebranded the platform. The iconic blue bird is no more. The Twitter name is gone. So are “tweets,” which have become part of the social vernacular. Instead, the company will simply be known as X.

“It is an unusual business move because it eradicates 17 years of brand value in the Twitter name,” Mike Proulx, research director at the global market research company Forrester, told CBC News. “It’s not just Twitter in a name. It’s Twitter as a verb, something that has become part of our cultural lexicon, and that is the Holy Grail for brands. So in doing this, [Musk] is essentially starting from scratch to build a new brand around X.”

Simpson, principal of IP boutique Shift Law Professional Corporation, says he was surprised the company is “abandoning its famous trademark that has built up a great deal of goodwill.”

“Elon Musk has proven himself to be a pretty impulsive, unpredictable leader,” he tells LegalMattersCanada.ca. “Sometimes companies will rebrand because they feel that their legacy brand has been tarnished. But in this case, who knows?”

Brand marketing, trademark concerns

Aside from the brand-marketing concerns of switching to X, there are also trademark implications, Simpson says.

“It is a matter of what X has been registered for and what specific goods and services it has been registered for,” he says. “In the law, we consider the scope of protection. If there are many people using X for different goods and services, each one of them is going to have a very limited, very narrow scope of protection.

“The scope is only going to cover the specific goods and services that they offer and nothing outside of that,” he adds. “The theory is the average consumer is going to be conditioned to differentiate between the different Xs. They are not confused into thinking that a company that makes gaming consoles and software is in the same business as a social media company.”

Simpson says choosing X “is not only a risk, it is also not a very effective trademark.”

“What makes X a risky choice in terms of infringement exposure is also what makes it a somewhat ineffective trademark,” he explains. “So many others are using it for various goods and services, including some that arguably overlap with Twitter’s services.

“Letters and acronyms are generally very difficult to protect as trademarks,” Simpson adds. 

While the number of businesses using X as a brand increases the chances of Twitter facing litigation, it also decreases the chances of those suits being successful, he says.

‘That many more people who might take offence’

“If there are many enterprises using X there will be that many more people who might take offence and sue Twitter,” says Simpson. “However, it also decreases the chances of any of those potential plaintiffs being successful. That is because for a trademark to be a trademark, it needs to be distinctive. And the fact that there are so many others out there using X would make it challenging for any of them to claim that the average consumer thinks of them when they think of X.”

However, he says Musk might have an advantage when it comes to eventually claiming the brand since Twitter is so well known.

“Wanting to use a single letter like X that is used by others might not be fatal to its success as a trademark because it can acquire distinctiveness over time and through extensive use,” Simpson explains. “Twitter’s use can become so dominant in the marketplace that it effectively acquires the attributes that a trademark needs to function as a trademark. Namely, when the average person hears X, they don’t think of any of those other hundreds of companies using X, they think of Twitter.”

He says that can be achieved through marketing, advertising and public conditioning.

“By doing that, Twitter can turn X into an effective trademark for themselves,” Simpson says. “Legally speaking, they could render all those other X marks, even the ones that have been used for years before Twitter came along, nondistinctive and invalid. Through marketing and advertising, you can create rights for yourself and destroy the rights of others.”

“There are very few companies in the world such as Twitter who are capable of that. Perhaps that is part of the play.”

Companies must act quickly

If that is indeed the plan, companies looking to protect to X brand must act quickly, he says. 

“If someone is going to object to Twitter using X, they have to jump on it now,” Simpson warns. “There is a general, applicable legal theory that states you can’t just sit on rights that you plan to enforce later. If some of the bigger players have an arguable claim to X, such as Microsoft, they need to act sooner rather than later.”

Simpson says he wonders about Musk’s real motivation for the move to X.

“As a trademark lawyer, I see certain indications that this might be a stunt,” he says. “It is risky to use X and it is not an effective trademark. And I checked and it doesn’t appear that Twitter has even applied to register X as a trademark in Canada or the United States.”

Publicity, whether good or bad, can bolster a company’s brand, says Simpson.

“Elon Musk arguably feeds off controversy so perhaps choosing a trademark that is likely to encounter some serious headwinds in terms of getting protection will no doubt be the focus of a great deal of media attention,” he says. “Musk could be playing 3D chess and we are all focused on the wrong thing.

“If you generate controversy, you will be getting attention. That is what a trademark is designed to do,” Simpson adds. “It is intended to generate attention and get people focused on a single trade source. Right now, Twitter and X have people talking.”