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Using Twitter Is Not a Regsiterable Trademark for Online Community Service

Daniel Mills, Trademark Attorney

Posted Friday, May 20, 2016 by Daniel Mills

When a trademark applicant sets up a social media account on Twitter in order to advertise or promote its business via a social-networking website, is it the applicant or Twitter that is providing the service of “creating an on-line community for users” interested in the applicant’s business? The answer is Twitter!

Thus began a recent decision by the TTAB that upheld a refusal to register SAY IT YOUR WAY application by FTD for its Twitter account for “Creating an on-line community for registered users to participate in discussions, get feedback from their peers, form communities, and engage in social networking featuring information on flowers, floral products and gifts.” (International Class 042)

The decision cited a recent update to Section 1301.04(h)(iv)(C) of the Trademark Manual of Examining Procedure(“TMEP”)in April 2016. The section states:

Some applicants may mistakenly mischaracterize their services as ‘social networking’ because they assume that advertising or promoting their non-social-networking services via a social-networking website means they are providing social-networking services. For instance, an applicant may mistakenly file an application for ‘online social-networking services’ and provide a Facebook® webpage as a specimen when, in fact, they operate a pet store and are only using the Facebook® website to advertise the pet store and communicate information to and messages with actual and potential customers. Such a specimen is not acceptable for the social networking services since it does not demonstrate that the applicant is providing these services

FTD’s position was that it’s use of Twitter created a sub-community within the Twitter universe, but the Board was not convinced that this use constituted “creating on online community” and held that Twitter is creating the service of on online community, not FTD. the Board noted that FTD “does not provide a platform by which its followers can create a profile, establish a homepage, and attract further followers.” Furthermore the Board agreed with the examining attorney that FTD was Applicant “simply acting to further the sale of its flowers, floral products and gifts by using its Twitter account to engage with consumers and potential consumers and promote its retail services.”

So the lesson here is that simply using a social media site even if that use is detailed, voluminous, and integrated into a business’s marketing plan, is not the same as creating a separate online community that creates a registrable trademark for that service.

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