A rebrand does not just launch a new name. It starts a clock on the old one. Stop using a trade mark, show no intention of going back to it, and the law can treat it as abandoned. At that point a competitor can pick it up, together with the brand equity you spent years building. That is the trade mark abandonment risk most rebranding plans never mention.

A nice example comes from the ruling in the Delaware federal court in the dispute between X Corp and Operation Bluebird, a startup that set out to relaunch the old Twitter brand. The judge granted X a preliminary injunction over the TWITTER name itself. On the word TWEET and the blue bird logo, X lost. The court found the startup likely to prove that X had discontinued genuine use of both and did not intend to resume it. The startup renamed its platform Tweet.app the same day, having already taken more than 172,000 handle requests before launch.

Rebranding without losing your trade marks

The strategic point is that the abandoned assets were not dead assets. Two were valuable enough for a challenger to build a business on. The TWEET mark and the bird still carried more recognition than most companies ever earn, and they were left on the table.

Three things worth taking from it:

– Abandonment is a question of conduct, not intent. A rebrand memo does not preserve the old marks. Continued genuine use does. Where the old brand still has value, keep it in real commercial use somewhere, even at small scale, or decide deliberately to let it go.
– Different marks fail separately. X kept TWITTER because it kept using it. The word, the logo and the product vocabulary each stand or fall on their own record of use, so an audit after a rebrand has to go mark by mark.
– The public does not rebrand on instruction. “Tweet” stayed in everyday speech long after the company dropped it. Where the market keeps using your old name, a competitor adopting it gets recognition for free.

Most countries run the same logic on a fixed timetable. Once a registered trade mark has gone without genuine use for a set period, usually three to five years, anyone can apply to have it removed. A rebrand starts that period running on every mark it retires.

The mistake is treating retired brand assets as sunk cost. Walking Away From a Brand Doesn’t Always Mean You’ve Let It Go set out the challenge when it was filed. It is not a new weakness either. No brand protection – Twitters greatest challenge? flagged the thin protection around the bird and the word “tweet” in 2009. And it is the same pattern as The Quiet Decay: Why IP Value Slips When No One Is Watching – the loss came from inattention, not from a stronger opponent.

Before the next rebrand, list every mark being retired, decide for each whether it is kept in use, licensed or released, and put someone’s name against the decision. Otherwise the market, and eventually a court, will decide for you.

Read the article: Judge blocks X rival from using Twitter name, but allows ‘Tweet’ for now, Sarah Perez, TechCrunch.