No Matter How Big You Are, Always Clear Your Trademarks

Elon Musk is known for taking big swings and moving quickly. Most recently (and notably), his offer to buy Twitter, which apparently originated as a joke, became real after hotly-contested litigation. His management of Twitter has been similarly aggressive with similar challenges: layoffs at all levels have led to multiple lawsuits, changes to policies have led to public outcry and accusations of bias, and his rebrand from “Twitter” to “X,” abandoning a social media brand for a single letter, has been the subject of much comment and debate. Musk has been trying to use “X” as a brand for nearly a quarter-century, reportedly preferring his own online payment service, X.com, to PayPal after the two were merged, and including ”X” both in the name of his rocketry company (SpaceX) and in branding for his cars (Tesla Model X).

Whatever value was lost in moving away from Twitter and its famous blue bird, and whatever Musk plans for “X” as his brand for an upcoming “Everything App,” as he has called it in interviews and tweets (or now “posts on X”), his use of “X” for his social media platform may face another obstacle. This week, a Florida legal advertising company filed suit against X Corp., claiming that X Corp.’s use of “X” for its social media platform infringes its rights in its federally registered trademark X SOCIALMEDIA. While X SOCIALMEDIA is registered in connection with advertising services, and the plaintiff advertises on social media platforms rather than operating a social media platform, the plaintiff points not only to Musk’s stated intentions for the X brand, but also to a filed trademark application for X in connection with “promotional services,” and even to instances of confusion among consumers.

Of course no one would really expect social media giant Twitter/X to be run by a legal advertising agency, and that is not the plaintiff’s claim. That would be traditional or “forward” confusion, where the junior user siphons off the goodwill and recognition of the senior user through the confusion. The plaintiff is claiming that they have experienced, and are likely to continue to experience, “reverse” confusion, in which a senior user with established trademark rights is deprived of the value and goodwill of their trademark by a larger junior user. For example, people could believe that X Social Media, when it uses the X SOCIALMEDIA mark, is not an independent advertising agency specializing in legal advertising, but rather part of X Corp., thereby depriving the actual company of recognition and potential business.

Any trademark search would have found the registered X SOCIALMEDIA mark. While Musk and his company may prevail in this suit, success will no doubt come at a significant cost of time and money; and there is a chance that the plaintiff, if unwilling to settle, could obtain an injunction prohibiting Musk’s use of X for social media products and services.

Every product and service name and brand should be discussed with an attorney and cleared, no matter how large or small your company is. If you are in the beginning stages of adopting or changing your brand, it is crucial to have an IP attorney to catch possible conflicts, including potential infringements, prior to using the mark or filing an application. Please do not hesitate to reach out to me at dsiegel@norris-law.com.