X Marks the TWIT in Twitter

October 19, 2023

Love him or hate him Elon Musk has made a massive impact on the world.

One of his most overlooked contributions is the concept of a “successful failure”, which is often used to describe an explosion of one his SpaceX rockets. This was seen most recently when the SpaceX Starship rocket exploded. Musk’s response was a Tweet stating: “ Congrats @SpaceX team on an exciting test launch of Starship! Learned a lot for next test launch in a few months”.

The message is simple – there is a lot to learn from failure. Enter the rebranding of “TWITTER” to “X”. Much has been written about it already, but in the spirit of “successful failures” we believe that there is much to be gained from unpacking what went wrong.

Lesson 1 – Check that the Mark is Available

Before you decide to make any use of your new (or newly selected) brand, it is critical that you ensure that the mark is available for use. This is done by conducting a trademark clearance search, which is conducted by expert attorneys who can suitably advise you on the availability (or risks) of your new brand.

It appears that Twitter may not have run a clearance search as numerous articles have already pointed out that both Meta and Microsoft own ‘X’ trademarks that could potentially block Twitter’s use of the mark (and end up costing them huge amounts in legal fees).

In the US alone there appears to be over 900 active U.S. trademark registrations already covering the letter X, each of which could pose a problem.

Lesson 2 – Register your Trademark

Before making use (or any public announcements to your 139m Twitter X followers) of your new brand, you would be wise to file applications for the registration of your trademark in each country in which you require protection.

We have conducted our own search of the South African Trademarks Register and it appears that (as at the date of writing this article) Twitter did not have any pending applications or registrations for their new ‘X’ mark. This not only puts them at risk from third parties attempting to profiteer from this gap, but also, given the length of time to get a registration, sets them back potentially years.

Lesson 3 – Copyright in Logos

Another form of intellectual property protection that is often overlooked is copyright. In South Africa the protection is automatic with no registration required in order to obtain copyright protection in a work (subject to certain requirements being met).

A person with the Twitter X handle @ajtourville is claiming to have created the new X logo adopted by Twitter. Notwithstanding the fact that he has stated: “if @elonmusk wants,  he can have it for free”, on ordinary copyright law interpretation, @ajtourville would be the owner of the copyright in the logo (assuming the work is capable of copyright protection).

We don’t need to tell you that this places Twitter X at massive risk. Effectively @ajtourville has granted Twitter a license to use the logo. However, there is little to stop him from one day cancelling the license and demanding payment.  

Another article claims that the font used in the new X Logo is actually a font set that requires an upfront license fee. If this is the case Twitter X would need to have acquired the rights to use the logo.  

Whether or not you are happy about the re-brand, it does give us a front row seat to witness another “successful failure”. Hopefully lessons will be learned, and mistakes will not be repeated by Twitter X (or by you).

If your business is considering a rebrand, contact the Witz Inc IP team today and get in front of any potential challenges on your brand journey.