‘Why kill the bird?’: Twitter’s ‘X’ rebrand under scrutiny

Twitter hasn’t enjoyed the best headlines of late so perhaps it was inevitable that its billionaire owner Elon Musk would opt for a fresh new look, and start, for the brand.

The problem is, according to trademark lawyers, he may have gone a bit too far by scrapping the globally recognised bird logo in favour of a simple configuration of the 24th letter of the alphabet.

Linda Yaccarino, who became chief executive of the social media platform last month, confirmed the platform’s rebrand to ‘X’ in a series of tweets on Sunday, July 23.

“It’s an exceptionally rare thing—in life or in business—that you get a second chance to make another big impression,” she wrote.

Second chances

But when Musk unveiled the platform’s new logo— a picture of a stylized X against a black space-themed background—the overall impression, and reaction, may not have been the one that he and Yaccarino were hoping for.

As is usual for the platform, the backlash was instantaneous: many users mocked the mogul for using a generic Unicode character.

So why do a switch in the first place? Well, it’s no secret that Musk’s tenure as Twitter CEO has been tumultuous.

Ever since he bought Twitter in October 2022 in a $44 billion deal, the social media forum has been dogged by allegations that it has become a hotbed of right-wing extremism. Amid such criticism, the brand has also seen job cuts, a marked slump in ad sales, pessimistic investors, and, more recently, Meta’s answer to Twitter in the form of Threads.

But while second chances in the form of a rebrand is a frequent, and sometimes successful plan for brands looking to reinvent a business, Musk’s approach has been decidedly unorthodox.

For many businesses, rebranding is a costly, time-consuming exercise that can take months, even years. But two days ago, Musk announced that he wanted to change Twitter’s logo and polled his millions of followers about whether they would favour changing the site’s colour scheme from blue to black.

“And soon we shall bid adieu to the Twitter brand and, gradually, all the birds,” he posted, later tweeting when he had decided on the option: “X is here! Let’s do this”.

The new app will incorporate audio, video and messaging functions as well as payments and banking options, confirmed Musk.

Yaccarino echoed her boss’s enthusiasm, posting: “Twitter made one massive impression and changed the way we communicate. Now, X will go further, transforming the global town square.”

A ‘questionable’ decision

But many lawyers are unconvinced that the rebrand heralds an exciting new era, predicting that it could lead to even more headaches for Musk.

As Dyan Finguerra-DuCharme, partner at Pryor Cashman, points out: “It’s so sad that he killed the bird: social media users may not know about the rebrand and be confused when they go to use or find Twitter. Musk also risks losing the goodwill built in the blue bird mark.”

Chelsea Steadman, associate at Volpe Koenig, is also bemused by the throwaway attitude to the platform’s brand equity.

“Twitter used its blue bird design for upwards of a decade. It was not only a branding symbol but was also emblematic of pop culture at the time of its creation; the Twitter brand was completely integrated into the avian theme.

“Indeed, how can one tweet if you are not a bird? If X wants to completely re-brand, the process has only just started.”

On the face of it, it appears the rebrand is an effort by Musk to align Twitter with his other ‘X’ brands—like SpaceX.

Caleb Green, IP strategist and technology attorney at Dickinson Wright, explains that there are “certain benefits in fully aligning the social media platform with Musk’s existing brands”.

But, he describes Musk’s sudden pivot as “a questionable business decision”.

“Twitter has a history of enforcing its trademarks in Twitter and its bird logo and the goodwill in Twitter’s brand, including its bird logo, is arguably much more valuable than Musk's SpaceX brand,” he explains.

Enforcement challenges

Then there’s the challenge of enforcing what is, let’s face it, a fairly indistinct letter mark.

“Twitter has several US and foreign trademark registrations. In stark contrast, it does not appear the company has any trademark application for ‘X’ in the US or any other jurisdiction,” says Green.

“The ‘X’ mark has hardly any goodwill or distinctiveness. Even if the company can assert trademark rights in the ‘X’ mark, they will likely be very narrow rights and difficult to enforce.”

Josh Gerben, founder of Gerben Law, believes that when it comes to larger brands, the move is somewhat unprecedented.

“I am not aware of any similar decision in history to jettison such an iconic, well known and protectable brand,” he reflects.

“The rights in any given trademark grow over time. At this point, it is very likely that ‘Twitter’ would be considered a ‘famous’ trademark under US law. This essentially gives it superpowers when it comes to enforcement.

“Given that the X mark is not even registered, the difference in rights could not be more extreme.”

Litigation ahoy

There is not just the potential loss of goodwill and enforcement issues for Musk to contend with: trademark lawyers believe that the rebrand will leave his lawyers increasingly busy in the coming months.

Indeed, the letter ‘X’ has been already used and registered as US trademarks by several companies, including Microsoft, in connection with computer communications, software products and services and online messaging services.

As Steadman explains, the idea of ‘X’ or the ‘X factor’ is well established as “a  popular commercial connotation”.

“At present, there are 1,334 live trademark records using X in some way in class 41, 277 live records in class 38. Many prior registrations use the term X individually with design elements. So, the broad field of third parties that use X certainly appears crowded,” she says.

And at least a few of such existing ‘X’ trademark registrants are arguably competitors to the social media brands, according to Green.

“These registrants may have a heightened appetite to litigate and bring claims of trademark infringement and unfair competition, which could further harm the Twitter brand and its overall business.”

Gerben agrees, arguing that: “Twitter/X is likely to face an onslaught of lawsuits from folks that claim to own registrations around X or a similar mark for various goods and services that are either highly or tangentially related to social media services. Essentially, the larger the company, the bigger the litigation target.”

Copyright issues

In addition to trademark issues, the new ‘X’  logo could attract some copyright lawsuits.

“The logo appears to be a direct copy of an existing unicode ‘X’ character. This raises a separate potential copyright issue,” explains Green.

“Copying another design and using it as a new brand without the creator's permission could introduce copyright infringement liability.  Additionally, if the logo is a direct copy of someone’s else's copyrighted work, it may jeopardise any efforts the company makes to assert trademark protections in the logo.”

“The proposed logo, posted by Elon Musk, appears to be from a pre-existing font or at least a pre-existing design found online,” agrees Steadman.

“Assuming the new brand moves forward with this design or something similar, the company could face claims that they do not have exclusive use to that design.”

To ward off such claims, Musk could take the position that the logo was gifted by a fan who intended it to be used for this purpose, adds Steadman.

“However, there are always complications if a trademark is claimed where an underlying copyright is owned by someone else. If you do not have an exclusive right to use that design, in commerce or otherwise, that limits your ability to secure registration.”

“If the company modifies the design to something newly created, it could potentially avoid such claims; however, there could remain a question of whether any such new design is merely a derivative of the original proposal.”

Size matters

Not all are entirely sceptical about the brand’s new direction, however.

Despite her misgivings about the loss of the bird mark, Finguerra-DuCharme believes that the platform’s new direction could ultimately pass muster with its target audience, and even confound its naysayers.

“The company is such a corporate behemoth that it is likely to instantly saturate the market so consumers will [eventually] associate X with Twitter and Musk,” she predicts.

“Twitter will then argue that even though it is ‘a junior user’, it has developed secondary meaning in the mark and it is therefore protectable.”

Steadman agrees that the company’s size does confer a considerable advantage.

“A lot of potential prior rights holders might not be up for the challenge of going head to head with a large company. So right now, I would say the wording alone likely does not have a broad range of enforcement. However, in five or more years, once the X brand is more established, that might change.”

Zombie brand?

And while it seems the bird may be deceased (for now), could there be life after death?

“Twitter will maintain lingering rights to the blue bird as long as they can argue that branding still refers to their own business but we might see what happens if the nest is abandoned for too long” says Steadman.

And if the logo does morph into a so-called ‘zombie brand’—abandoned trademarks that are adopted by a new owner specifically to capitalise on consumer recognition of and loyalty to the discontinued mark’—then Musk may have another conundrum to face.

“If a company stops using a trademark with no intent to resume use in the future, it can become available for others to use,” explains Gerben.

“If Musk stops using Twitter and the bird logo completely, I would expect to see someone file a ‘petition to cancel’ the company's registrations on grounds of abandonment,” he adds.

But it appears that Musk is, for now, unruffled by criticism of his leadership. Just before he unveiled the rebrand, he fired a pre-emptive strike on Twitter/ X against his critics.

“Frankly, I love the negative feedback on this platform. Vastly preferable to some sniffy censorship bureau!” he wrote.