Formerly Twitter prevails against Twitter.new

Elon Musk’s X Corp. purchased social media site Twitter in 2022. The TWITTER “brand” was estimated to be worth $5.7 billion at that time. Twitter had lagged behind other social media sites in terms of users, but it was a source of breaking news and  influence.

Musk set about overhauling Twitter, making significant changes to its revenue model, algorithms, and content moderation policies.

He also rebranded the site from TWITTER to X. On July 22, 2023, Musk posted: "And soon we shall bid adieu to the twitter brand and, gradually, all the birds." The next day he stated: "We're cutting the Twitter logo off the building with blow torches."

X redirected <twitter.com> to <x.com> as its home page and introduced X as the new name. It removed trademark uses of TWITTER, TWEET, and the Twitter bluebird logo from the site and from its own social media handles. Subdomains such as <blog.twitter.com> were redirected to <blog.x.com>.

Musk’s changes to content moderation created a perception that Twitter, previously a somewhat neutral content platform, had been transformed into an advocacy vehicle for Musk’s views.

Meanwhile, the TWITTER brand, an asset valued at $5.7 billion only a few years earlier, was sitting unused.

Enter Operation Bluebird (“OB”), a startup. One of its co-founders was a former inhouse trademark lawyer for Twitter. In December 2025, OB unveiled a website at <twitter.new> soliciting reservations for a TWITTER.NEW service. While the site contained disclaimers of affiliation with X Corp, it promised to build “a new Twitter” presumably furthering a free-speech ideal associated with the old Twitter.

Simultaneously, OB filed petitions to cancel U.S. registrations covering X’s TWITTER, TWITTER-variants, TWEET, and Bluebird logo marks (the TWITTER Marks), arguing that X had abandoned the marks without intent to resume use of those marks.

X Corp. sued OB for trademark infringement and dilution in the District Court of Delaware and moved for preliminary relief enjoining use of TWITTER.NEW and the other TWITTER Marks.

The standard for abandonment is non-use coupled with the intention to not resume use. The Lanham Act emphasizes bona fide trademark use in commerce as sine qua non for trademark ownership.  Various provisions work to prevent long-term reservation or warehousing of trademarks.  Token use made with the intention to not abandon a mark will not suffice.

Here, OB was able to establish the systematic cessation of conventional trademark use of the TWITTER Marks. Furthermore, the court viewed Musk’s pre-litigation statements as compelling and probative evidence that X did not intend to resume use.

Nevertheless, the court found that there had been unconventional trademark use by X, at least with regard to the TWITTER mark, basing its finding on X Corp.' s listing of the X app on the Apple App Store which stated: “Welcome to X (formerly known as Twitter). . . “’ (emphasis added).

OB had argued that the “formerly Twitter” listing is not bona fide trademark use because the phrase is not being used to indicate a current source of origin. The court disagreed, stating that the phrase “formerly Twitter” “takes advantage of the goodwill associated with the Twitter-formative marks X Corp. acquired when it purchased Twitter, Inc. and identifies and distinguishes the source of the service in question . . . The listing therefore constitutes evidence of bona fide use of the Twitter-formative marks.”  The court cited several circuit decisions holding that “formerly known as” usages comprised bona fide trademark use.

In contrast, there was no “formerly known as” use with regard to the TWEET trademark or the bird logo. The court held that OB was thus likely to prevail at trial that X had abandoned those marks.

Within hours of the decision, OB renamed its service TWEET.NEW. The case now proceeds to trial.

Two questions arise. Can we meaningfully distinguish between “formerly known as” use intended to take advantage of goodwill, from “token use” intended to prevent the loss of goodwill? Do we need to define each further?

Second, the court doesn’t ask how the 500 million users of TWITTER will perceive the use of TWITTER.NEW which promises to create a new Twitter. Will a meaningful part assume an association of some type? Should consumer deception be a part of the analysis?