HT to Marty on the story about the bird graphic on the home page of Twitter. I hesitate to call it a “trademark,” although I would have but for the story.
Wired reports that Twitter got the design from iStockPhoto and paid the usual licensing fee for an editorial use of the design. (I looked on iStockPhoto and found a number of similar designs by the same artist – File #: 4681613 looked closest to me.) Twitter’s use is within the scope of the license, in part because it’s not selling any promotional goods with the logo.
But the license isn’t exclusive, which means that anyone else can come along and use the same image in exactly the same way – or not?
Nothing says that you need to own the copyright in a work to use it as a trademark. (Think of all those musical source identifiers – I ticks me off that I can’t hear “Rodeo” anymore without thinking that “Beef is What’s for Dinner.”) Twitter would only need to prove the same thing any other trademark infringement claimant needs to prove – at the time of the junior user’s adoption of the same logo, there was trademark significance in the logo already accruing to Twitter and potential consumers would be confused by the junior use. One doesn’t have to own the copyright in a logo to own the trademark significance in it.
The T-shirt above (not quite the Twitter use, since the bird here is black rather than white) is being sold by the artist, not Twitter. Is it strengthening, diluting or to be confused with the Twitter use? The mischief possible makes this trademark lawyer shudder –
© 2009 Pamela Chestek
