Elon Musk’s X.com Trademark Dispute: Can one Person Own a Single Letter?
In 2022, Elon Musk, head of Tesla and SpaceX, bought Twitter, the widely used social media site for $44 billion.[1] Less than a year later, he announced the rebrand of the service to “X”, sparking legal and commercial debate of the feasibility of trademarking a single letter.[2] Although the logo and branding were successfully changed, the domain name remained Twitter.com until early May this year when queries redirected users to X.com.[3]
The rebrand, however, did not come without criticism, as many believed that the ability to trademark the name and logo was weak seeing as nearly 900 companies have filed trademark registrations involving the letter X in the U.S alone, including tech behemoths Meta and Microsoft. [4]
While securing trademark protection for a single letter is not impossible, it typically requires distinctiveness or a unique stylized presentation. mfn]See Eric Eagle Hartmans, Crafting a Distinctive Logo for Trademark: A Comprehensive Guide, Hartmans law, (Nov. 28, 2023), https://hartmanslaw.com/crafting-a-distinctive-logo-for-trademark/.[/mfn] This presents a challenge for Musk with the high amount of existing trademarks of the letter held by other companies. [5] In fact, Musk has been already sued by “X Social Media” which has alleged that Twitter’s new name, X, infringes the agency’s trademark which also incorporates the letter ‘X’ and the platform’s recent rebranding from Twitter to X is likely to cause confusion among consumers, causing the agency a significant loss of revenue.[6] However, there is an argument to be made that Social Media’s ‘X’ bears little similarity to Elon Musk’s ‘X’.[7] X Social Media’s ‘X’ is a person whose arms and legs make the X shape whilst holding a pair of scales, a nod to their legal client base and heritage.[8] X’s ‘X’ is very much a straightforward design of the letter—a black bold X written using the font “Special Alphabets 4” from Monotype’s Special Alphabets font family. [9]
So, what does Musk have to do to successfully trademark a single letter? Well, to qualify for trademark protection under the Lanham Act, a mark must be distinctive and not merely descriptive or generic.[10] This requirement poses a significant challenge for Musk, as the letter “X” is commonly used in a variety of contexts, making it difficult to argue that it is inherently distinctive. For a single letter to be protectable, it must acquire secondary meaning, demonstrating that consumers associate the letter specifically with the applicant’s goods or services.[11]
If the applicant cannot show that the mark is inherently distinctive, then they must show that it has acquired distinctiveness.[12] This can be done by providing clear and convincing evidence that the letter identifies the producer or manufacturer and not just the product.[13] Evidence of substantially exclusive and continuous use of the letter in commerce for the five years preceding the application date may be sufficient to establish distinctiveness.[14] The applicant may also need to provide evidence of advertising expenditures, sales volume, and other factors that demonstrate the letter’s recognition in the marketplace.[15] For instance, BMW successfully trademarked the letter “M” as part of its high-performance “M series” vehicles and related products because it demonstrated that consumers had come to associate the letter with BMW’s brand identity.[16] Given that the new logo is not inherently distinctive with similar existing trademarks and widespread usage, it is likely that Musk will have to show acquired distinctiveness over time.[17]
Under U.S. trademark law, registration can be refused if the mark is likely to cause confusion with existing trademarks.[18] The United States Patent and Trademark Office (USPTO) will evaluate whether Musk’s “X” mark could be confusingly similar to other registered trademarks using the same letter, particularly those in the tech and social media industries. For example, Microsoft’s “X” branding for its Xbox console could present a direct conflict, as it has established recognition in the tech space.[19] Additionally, other companies using “X” as part of their branding, such as Xfinity (Comcast) and SpaceX (which Musk himself owns), could complicate his application.[20] Competitors might argue that Musk’s use of “X” creates a likelihood of confusion or dilutes their existing trademarks, leading to legal disputes over priority claims.[21]
As previously mentioned, trademarking a single letter has historically proven to be a complex legal battle. In Pro. Sound Servs. v, Guzzi, the court concluded that the plaintiff’s use of the single letter “s” was not distinctive enough to qualify as a valid trademark. [22] The court emphasized that the plaintiff failed to show that the letter “S” could distinguish its goods from those of others, and thus, no reasonable jury could find that a valid trademark entitled to protection existed. [23] This precedent indicates that Musk may face similar difficulties in arguing that “X” is sufficiently distinctive to warrant trademark protection, especially considering Musk’s broader application for a social media platform increases the risk of overlapping or competing claims. [24]
Securing trademark rights for “X” also poses additional challenges on a global scale. Different jurisdictions have different requirements for what constitutes a protectable mark. For example, the European Union Intellectual Property Office (EUIPO) often rejects applications for single letters unless the applicant can prove that the mark has acquired a unique association with their brand across the EU. [25] Similarly, China, where trademark squatting is common due to its “first-to-file” system, would require Musk to proactively file to prevent others from taking advantage of the “X” brand before it gains widespread recognition.
[26]. This is because China’s approach grants trademark rights to whoever files the trademark first, regardless of whether they are the legitimate owner. [27] On the other hand, the Madrid Protocol allows trademark applicants to seek protection across multiple jurisdictions through a single application. [28] However, even under this system, national offices retain the authority to reject trademarks based on their own laws and standards.[29]
So, what now? If the USPTO or international trademark offices reject Musk’s application, his legal team may pursue other strategies to build distinctiveness over time. [30] One option is to heavily invest in marketing and branding efforts that establish “X” as a unique identifier for his platform. [31] Developing a distinctive logo or specific features unique to the platform could help build the secondary meaning needed to warrant trademark protection.[32] Alternatively, Musk could pursue litigation if competing entities challenge his use of “X.” Given his history with aggressive legal action in protecting Tesla and SpaceX trademarks, Musk could argue that his use of “X,” combined with his brand’s high-profile presence, has established sufficient recognition for a trademark claim.[33]
Whether Musk continues to fail or succeeds, the legal precedent set by this dispute will likely influence the branding strategies of other tech giants and test the boundaries of trademark law as what he aims to do is no small act in my opinion.
Footnotes
