We recently wrote about Elon Musk's controversial decision to opt for the letter X as the name for the business and social media phenomenon that was once called Twitter, a platform on which much of the world would happily 'tweet'. We discussed the importance of clearing a new trade mark before using it, the difficulties involved in registering a single-letter trade mark, and the folly of abandoning a very distinctive and well-known brand name. Twitter is, of course, a very distinctive and well-known brand name!
There have been significant developments since we published that article.
Trade mark infringement
Things change...very quickly.
Previously we discussed the fact that a US trade mark attorney, Josh Gerben, felt that Elon Musk's decision to switch trade marks from Twitter to X was a bad one - why give up such a distinctive, well-known and well-protected trade mark for something as risky and wishy-washy as X? Things have moved on somewhat - Gerben is now involved in bringing trade mark infringement proceedings against Elon Musk's X Corp.
Alleged trade mark infringement
Gerben is acting on behalf of a US (Florida) company called X Social Media, which claims that Elon Musk's X Corp is guilty of trade mark and service mark infringement. X Social Media, as we understand, offers "advertising and social media services connecting law firms and those in need of advocates". X Social Media concedes that its logo looks very different from the logo of X Corp, but claims that it "emphasizes the X portion of its mark through its advertising, blogs and newsletters highlighting its work".
X Social Media alleges consumer confusion – confusion that has arisen from the huge media coverage that accompanied the rebranding of Twitter to X. This confusion has also resulted in consumers believing that X Social Media's services are associated with X Corp: "As X is a social media platform, consumers naturally conflate X Social Media as X Corp's social media platform."
Damages / Financial losses
X Social Media claims that it has already suffered losses in revenue and that these losses will likely continue. It makes the point that X Corp appears at the top of search results for the term "X social media".
X Social Media's cease and desist letter to X Corp in August 2023 had no effect, and the company therefore filed court proceedings. X Social Media seeks an injunction that will stop X Corp from offering services under the trade mark X and of course, damages. These proceedings will no doubt be followed with much interest.
So much for trade mark infringement – there's also been a great deal in the news of late about regulatory issues affecting companies like X Corp.
The EU's Digital Services Act
Being sued by a competitor for trade mark infringement is one thing, facing scrutiny from an EU regulatory body is, we would imagine, far more concerning. There's considerable heat coming the way of X Corp and Elon Musk right now, with Mark Zuckerberg of Meta and Shou Zi Chew of TikTok seemingly also in the firing line. This is all to do with the events in Israel and the Middle East and the EU's Digital Services Act.
Misrepresentation and graphic content
The EU authorities have been very quick to remind the social media companies of their obligations, especially as regards misinformation and graphic content. It's all explained in a recent magazine article, which talks about the fact that X "has been flooded with gruesome images, politically-motivated lies and terrorist propaganda that authorities say appear to violate both its own policies and the European Union's new social media law."
The European Commissioner
Europe's commissioner in charge of social media content rules, Thierry Breton, has demanded that Musk explain why "graphic images and disinformation about the Middle East crisis were widespread on X." Breton added that "we will include your answer in our assessment file on your compliance with the DSA."
The article suggests that "Musk is facing the threat of sanctions - including potentially hefty fines - as officials in Brussels start gathering evidence in preparation for a formal investigation into whether X has broken the European Union's rules. Authorities in the U.K. and Germany have joined the criticism."
A mighty tussle
The article goes on to suggest that "The tussle represents a critical test for all sides. Musk will be keen to fight any claim that he's failing to be a responsible owner of the social network formerly known as Twitter - all while upholding his commitment to free speech. The EU will want to show its new regulation, known as the Digital Services Act (DSA), has teeth."
Elon Musk really does have a great deal on his plate – the stakes are high!
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