Twitter: Patent Infringement and Genericide in 140 Characters



Merpel is more interested in Twitter's
mascot than the service itself...

As Twitter prepares to go public this week through an IPO, it faces two IP challenges: defense of a patent infringement claim and offensive protection of its trade marks from genericide. 

Early in October, Twitter filed initial regulatory filings with the Securities and Exchange Commission (SEC) outlining its plans to go pulic and disclosing certain risks to investors.  Among the stated risks was the concern that its trade marks could suffer genericide and become unenforceable.  Specifically, Twitter stated in its filing, "[t]here is a risk that the word 'tweet' could become so commonly used that it becomes synonymous with any short comment posted publicly on the Internet, and if this happens, we could lose protection of the trademark."  How great is this risk?  This Kat has yet to hear anyone refer to short messages posted anywhere other than Twitter as a Tweet.  [Have any readers heard such generic uses of the mark?]

However, if genericide is a realistic risk for Twitter, it would be well advised to implement promptly a strong trade mark maintenance and enforcement strategy, as well as a program for public education about its trade marks. Google comes to mind as a company that faced such a risk as its popularity skyrocketed. It launched media campaigns reminding consumers that they were "searching the web on Google" or "Googling, but only on the Google platform," and they were never, ever, "googling."  By taking swift and consistent action to protect its trade marks, it can avoid the fates of zipper, aspirin and escalator, which were all brand names before becoming generic terms. 

On Monday this week, the same day that Twitter announced an increase in its IPO price range, it also disclosed another IP risk.  IBM has threatened to sue Twitter for patent infringement in connection with three IBM patents.  Twitter has faced - indeed, is still facing - patent claims from other parties, but IBM is the biggest claimant with the deepest pockets.  Fortunately for Twitter, IBM is apparently willing to "negotiate a business resolution of the allegations."  Surely IBM believed that making its claims just days before Twitter's IPO would make Twitter more likely to settle quickly lest any investors get scared away. 

However, as it goes public and continues to grow in size, Twitter should avoid giving the impression that it is an easy target or that it believes the IP underlying its platform is weak.  Twitter seems to understand this danger, acknowledging, "we are presently involved in a number of intellectual property lawsuits, and as we face increasing competition and gain an increasingly high profile, we expect the number of patent and other intellectual property claims against us to grow."

With respect to the IBM claims, Twitter's SEC filing declares, "[b]ased upon our preliminary review of these patents, we believe we have meritorious defenses to IBM's allegations, although there can be no assurance that we will be successful in defending against these allegations or reaching a business resolution that is satisfactory to us."  Whether Twitter will negotiate a settlement or dare IBM to sue it remains to be seen.  In the meantime, this Kat (who is not a patent practitioner) wonders if any readers would care to share their thoughts on the validity or strength of IBM's claims.