There can be no doubt that individuals and businesses are becoming increasingly reliant on social media like Twitter, Instagram, Snapchat and the like to market and sell their products and services. As users of these social media platforms are aware, the individual users are identified by unique “handles” which really are code names. For example, our firm’s Twitter handle is “@AffinityLaw.” The question therefore arises whether a use of a social media handle is sufficient trademark use in and of itself to create trademark rights in the word/phrase comprising the handle.
In its recent decision in Nazon v. Ghiorse (Opposition No. 91216729), the federal Trademark Trial and Appeal Board (TTAB) addressed the issue of whether a Twitter handle constitutes sufficient use to create trademark rights. The claimed trademark in the Nazon case was “Sextrology” for astrological services. The Opposer opposed an application to register the trademark “Sexy Astrology” for similar services. Given the similarity of the marks and services, a principal issue was who had priority of use. Among her other arguments, the Opposer claimed that she had priority of use because she had used the word “sextrology” in her Twitter handle. The TTAB rejected this argument, finding that the use of “sextrology” as part of the Opposer’s Twitter handle did not constitute sufficient use to create trademark rights.
In so holding, the TTAB was clear that its finding was based on the absence of evidence that the Opposer was actually offering any services using her Twitter handle. Consequently, it remains to be seen whether the Nazon case announces a bright line rule that no social media handle can create trademark rights (which is not likely) or, more likely, whether the Nazon case stands for the proposition that a social media handle by itself does not confer trademark rights and some additional trademark use in conjunction with the handle is necessary to create rights.