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On July 19th, Rick Quereshi filed a Notice of Opposition against Twitter’s application for the mark TWEET. Although Twitter applied for trademark protection of TWEET back on April 16, 2009, and the application was published for opposition later that year, Quereshi opposes the registration for the following reasons: 1) Twitter filed its application under an intent to use basis, yet no Allegation of Use has been filed to date; 2) Twitter has not used the TWEET mark in commerce with the identified classes of services from the application; and 3) Quereshi has been openly and notoriously using the TWEET mark in commerce via a mobile computing device since July 23, 2009. Thus, under the doctrine of common law, Quereshi claims ownership of the mark TWEET due to its prior senior use.
In the U.S., federal registration is just one route for obtaining rights in a trademark. Common law rights can also be established just from the actual use of a mark in commerce. The common law user can subsequently challenge the application or registration of that same mark by another party. Quereshi argues that regardless of Twitter’s prior trademark filing, Quereshi still maintains common law rights to the mark and is entitled to sue Twitter for trademark infringement, meaning that the registration would cause a likelihood of confusion as to the source of the product or services.
If Twitter’s trademark application is successful, Quereshi argues that he would be precluded from using his own common law trademark or, alternatively, impede with a license agreement for use of the mark TWEET between himself and Twitter.