[This post is authored by SpicyIP intern Abhijeet Audichya. Abhijeet is a fourth-year law student at Hidayatullah National Law University, Raipur, and is interested in the intersection of TMT and IP laws.]
As we already know, the sudden move of Twitter’s management to rebrand the popular communications platform by changing the famous ‘blue bird logo’ to ‘X’ has taken the world by surprise. But what seems like a probable ramification of the rebranding move is the trademark dispute that the organization is going to face due to this. The move is seen as one of the series of significant changes that have been brought about in Twitter after Elon Musk taking ownership of the organization and tried to make it a diverse platform.
The change is being opposed and made fun of by the user community of Twitter. Especially in the U.S., many of the Trademark attorneys and reporters have questioned the move due to the similar trademarks held by close to a thousand applicants including tech giants like Microsoft and Meta. A possible reason behind the said change is the owner Elon Musk’s fascination for the letter ‘X’ which can be observed through his other ventures like SpaceX and his planet’s name.
Indian Trademark Law and Twitter’s Rebranding Decision
But a much more thought-provoking discussion and research for IP enthusiasts like us is the scope of protection that can be given to Twitter for this ‘X’ logo in the Indian trademark regime. This must be seen with respect to the possible trademark protection in India to single alphabets.
If the organization can show that the alphabet ‘X’ is being used as a logo rather than claiming protection over the English alphabet X as the trademark for the organization, it would be easier to be trademarked in India as has been the case with Wildcraft’s ‘W’ and Netflix’s ‘N’ logos.
If we talk about the US, then under the Lanham Act of 1946, the alphabets can be used as trademarks by companies but if they are granted, the companies are protected in specific and limited classes of goods and services. But, in India, trademark protection to single letters or numerals invites varied opinions.
The Indian trademark law inclines towards the essential feature test aka dominant mark test for infringement assessment. This states that in order to claim infringement, a party must be able to show that the essential elements of the 2 marks are similar and may create confusion in the minds of the general public.
The courts have repeatedly held that in the Indian market, if the customers and services offered by the company are different, similar trademarks may be protected. Here, Microsoft may not have the claim because the trademark protection given to it is confined to its gaming accessory named Xbox which Twitter is not currently operating. But here the issue is with Twitter’s competitor Meta which offers similar services (social networking) as those planned by Twitter in the coming time.
That being said, it is also interesting to note that these giant companies that already use “X” as their mark or as the dominant feature of their trademark may sue Twitter, as they have their own distinct identity in the market. Thus, dilution and passing off claims can come to rescue prior holders/users of these marks.
Section 2(1)(m) of the Trademarks Act defines a mark that includes letters as well as numerals. But allowing any letter to be used as trademark by companies might cause confusion in the minds of the public. Thus, the Indian statutes and judiciary have clearly spelled out the necessary tests, like distinctiveness spectrum, required to be passed in order to claim protection for a trademark.
The distinctiveness element and protection to a trademark must be seen from a dual angle – the mark (with its meaning) and the category of goods for which it is applied. Public perception which is a relevant factor is possible with Twitter due to its current foothold in the market. The author feels that the new mark of Twitter, with due regard to the popularity of Twitter as a brand, will be heavily opposed based on Section 9 and 11 of the Trademarks Act 1999. This is because the letter ‘X’ is too generic to be protected under Indian law. Also, there is no dictionary meaning of the said mark and it has no relationship with the category of services it offers.
Interestingly, the same “X is generic mark” argument can be used other way as well when looking at the spectrum of distinctiveness where the mark it has adopted may come in the category of ‘arbitrary’ trademarks. This is because the mark does not relate to the category of goods or services in any way and is distinctive in that regard and space.
Thus, if the logo is distinctive and creative enough to create a unique image, it might build upon the current popularity of Musk and Twitter; and further get protected as a trademark in India. What has to be prevented is the monopoly over a certain English alphabet in India.
Conclusion
Also, a possible confusion in the minds of people stems from the fact that the domain ‘X.com’ had been reacquired by Mr. Musk in 2017 from his old company in order to create an app named X which was supposed to be a diverse application. Thus, if he had acquired trademarks for the same, that might turn out in his favor but certainly, with a widespread and commercially common alphabet ‘X,’ the claims over trademark from other applicants are bound to arise.
And if this is the case, the very essence of a trademark of preventing others from using your mark gets distorted. In India, certain giants, and popular brands, like McDonalds, have not been able to protect their logos and marks due to the deceptive similarity that they possessed at the initial stage of the mark.
In India, protection has been given to unique combinations of letters or descriptive elements but that has been due to the long and extensive use of the said mark by the applicant. (P.P. Jewelers Pvt. Ltd. v. P.P. Build well Pvt. Ltd). The Indian courts have even taken care of slightest similarities (between MDH and MHS) between marks of popular brands to not cause confusion in the minds of people. (Mahashian Di Hatti V/s Raj Niwas, Proprietor of MHS Masalay: 2011 (46) PTC 343 (Del))
The single letter trademarks were easily used in the earlier decades when the rules were not stringent enough. But, in India, Rules of 2017 and the Act of 1999 lay down the effective standards of distinctiveness for the registration of a trademark. Consequently, it can be inferred that single alphabet/number trademarks may still be accepted if they possess distinctive characters and are not merely descriptive in nature.
Twitter’s new logo, when seen from layman perspective, possibly does not involve any distinct features to be able to show distinctiveness in Indian market. This rebranding thing and trademark issues therein can be traced back to the trademark issues faced when Facebook got rebranded to Meta. Thus, the protection, even though granted, will surely be much narrower as compared to other creative logos like Wildcraft’s ‘W.’ But, if we talk about the US market alone, there it is possible that Twitter or as it is now called- ‘X’ might not face much legal hurdles due to the specific class of protection.
Thanks to Lokesh Vyas for his input on the post.