Welcome back to Legal Geek. This week, we review the newest lawsuit hot off the presses this week as podcast network TWiT, also known as This Week in Tech, sues Twitter for trademark infringement and other alleged misdeeds.
This Week in Tech is a network of shows in video and audio format that began around 2005 when Leo Laporte founded the network. Indeed, many of you know this well because Current Geek's own Tom Merritt was a host of multiple highly popular shows on that network from 2010 through 2013, including Tech News Today.
TWiT grew rapidly after the network's formation, and Laporte protected this name with a trademark registration at the U.S. Trademark Office in 2007. Around the same time, Laporte had Twitter founder Evan Williams on one of his shows, and that led to a frank discussion regarding the potential overlap and confusion between the names TWiT and Twitter. However, verbal communications and written follow-up communications in 2007 and 2009 reveal that Laporte and Williams agreed that these companies could co-exist because the creation of audio and video entertainment content was distinct enough from the text-based microblogging of the Twitter platform.
This 2009 communication is a key to the lawsuit this week, as Williams indicated that news reports of Twitter moving into the production of original video content were inaccurate. Thus, the two companies continued to peacefully co-exist until 2017, when Twitter did expand into original video production on the platform. Laporte again tried to get Williams and Twitter to stop, but as the parties have not reached an agreement, TWiT sued the giant Twitter this week in California federal court.
Many of the claims against Twitter in the lawsuit pertain to alleged breach of contract or false statements. Laporte argues that the verbal and written communications from a decade ago were an actual or implied contract between the parties to not expand into each other's tech space. As to these claims, Laporte makes a good initial case in the Complaint, but it's unclear that he has shown any evidence, particularly in writing, of actual clear intent of Williams to refrain from all future expansion into the fields of TWiT. Without that type of evidence, it may be difficult to prevail on these types of legal theories.
As to trademark infringement, Laporte argues that the two companies now overlap in goods and services, and the marks are sufficiently similar to cause consumer confusion. Williams' admission statements regarding potential and actual confusion based on the marks when appearing on a show with Laporte in 2007 would seem to support this argument as well. But as we've discussed before, trademark infringement and the likelihood of confusion test for it involves a high number of factors that courts must weigh before coming to a conclusion, and that could lead to varying final results.
Nevertheless, in my view, this is the stronger part of the case for TWiT, and it may be what brings the parties to the table to negotiate some sort of new co-existence. In other words, Twitter will likely pay a bunch of money to make this issue go away, as it seems unlikely that Twitter will want to back down from the extensive plans to produce the original video content for their platform.
If that doesn't happen, we will see just how far Leo Laporte will go in challenging a bigger entity to try and guard his IP and his market territory. We will certainly keep our eyes on it and provide further updates as the case progresses between these two companies and services many of us enjoy and use.
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