Introduction

I read a few articles recently discussing the trademark X chosen by Elon Musk as the new trademark for Twitter. The authors of these articles claimed that it is somehow an error, an illegal act, or otherwise inappropriate because, supposedly, Facebook already owns the X trademark. It was clear from most articles that the authors were biased and favoring Facebook over Elon Musk’s Twitter or favoring Zuckerberg over Musk. You could tell that some authors were almost jubilating that Musk will not be allowed to keep the new X trademark. It was also clear from most articles that the authors did not understand trademark law and trademark ownership.

Primer on Trademark Law

A little bit of primer on trademarks follows. Trademarks are typically owned by people and businesses who adopt them first and use them in commerce, to advertise and sell their goods and services under the trademark (called service mark when used for services). The registration of the trademark with USPTO does not necessarily create ownership in a trademark but does provide benefits, such as a presumption of ownership of the trademark by the registrant of the mark.

Sometimes, more than one owner can own a particular mark. For example, the mark ABC could be owned by someone who sells shoes and by someone who provides medical services. That is because in this scenario it is unlikely that the public would be confused, believing the shoes are sold and the medical services are provided by the same entity. In other words, there is no likelihood of confusion here. The likelihood of confusion is the standard by which ownership of trademarks is determined when a conflict arises. Indeed, in the above scenario although the mark is the same, the goods and services associated with the mark are not the same; they are not even related, and that's the reason why there is no likelihood of consumer confusion. Note however that, sometimes, when for example a mark is famous, one cannot choose the famous mark even for unrelated goods or services. That is because the fame of the mark is still likely to lead to consumer confusion. So, with this background in trademark law, who owns the X trademark?

Facebook’s X Trademark

A look at the USPTO database shows that Facebook once own the now abandoned Serial Number 87464698, for a stylized X, where it was described as follows: “The mark consists of a stylized letter "X". The left side of the "X" is white and the right side of the "X" is blue. The shaded square carrier represents background only and is not a part of the mark.” This application was filed on May 25, 2017, on intent-to-use basis and abandoned on April 19, 2021. So, at least according to this record, Facebook does not own the trademark X. At best, if they actually started to use it before Elon Musk’s Twitter, they may own a particularly stylized X - not the standard character X -, which is different than the stylized X of Musk.

Further, in their abandoned application Facebook has declared that it intended to use the mark in commerce in connection with handheld personal computers, digital media streaming devices; game software; computer game software, etc., in Class 9, retail store services featuring computer hardware, digital media streaming devices, etc. in Class 35, Entertainment services, namely, live performances by musical groups; entertainment services, etc. in Class 41 and design and development of computer hardware, etc. in Class 42. Thus, according to these identifications of goods and services, no social media platform services seem to have been connected by Facebook with their alleged X mark in this now-abandoned application. Thus, if this is all that Facebook has, Musk could argue that not only are the marks different as to their styles, but the goods and services are different and unrelated and thus unlikely to cause consumer confusion. If successful, even if Facebook acquired trademark rights via use for their stylized X, it could not prevent Elon Musk and Twitter from using their differently stylized X for their social media platform.

A deeper look into the USPTO records reveals that Facebook, more exactly its parent company Meta, has divided, from the above-referenced abandoned application, another trademark application that matured in US Registration No. 5777374 on Jun. 11, 2019, including for online social networking services, in Class 45. Arguably, these services are similar with Twitter’s services, and probably this is what the authors of the articles relied on to imply that Elon Musk and Twitter are prohibited from using their stylized X as the new trademark for Twitter.  Is that true? Not, so fast. In fact, Facebook/Meta’s application was initially rejected by the USPTO examiner for being similar with another X mark registered earlier than Facebook by another registrant. Facebook/Meta argued then that because the two marks are stylized differently, there will be no likelihood of consumer confusion. Guess what: Twitter can use exactly the same argument, likely successfully, against Facebook/Meta, should they try to stop Twitter and Musk from using their new X mark.

Conclusion

So, who owns the "X" trademark? Likely the best answer is that both Facebook and Twitter do. Thus, journalists should not jump to conclusions and biased insinuations on this subject or any other subject for that matter. It would serve us all better. Don’t you agree?