Introduction
The traditional perception of the trademark law has laid its ground on the doctrine of establishing the rights based on the usage in the course of trade. This assumption is the economic position of trade marks in the form of designations of origin that are intended to assist the consumer in making a selection and eliminating a market confusion. However, this paradigm has been highly confused by how global digital brands have expanded and have obtained novel dimensions of reputation, embeddedness of cultures and transnational recognition which surpass ordinary conceptions of utilisation.
The recent re-relabeling of the social media platform, “Twitter” to “X” gives a vivid example of this change. Being one of the best-established digital brands in the world, Twitter has long surpassed the limitations of a commercial identification to a cultural and language phenomenon. Its abrupt and intentional abandonment presents a important question in the law, is it inevitable that, when active use ceases, trademark rights become extinct, or that they can possibly survive in the presence of residual goodwill and lingering popular association?
This question presupposes specific importance in the Indian legal system as the Trade Marks Act, 1999,[1] on the one hand, allows the cancellation of the marks on a non-use basis and, on the other hand, grants greater priority to the well-known marks. The coexistence between these provisions generates a doctrinal conflict particularly when where globally acknowledged marks still exist in the minds of people since formal renaming.
This tension, as presented in this article, can be resolved by looking at the interaction between non-use, abandonment and the special status of well-known trademarks. It believes that the abandonment under the Indian law is not an effectual status as per the non-use, but factual based inquiry that must demonstrate the evidentiary character of the intentions of giving up the rights. The continuation of the goodwill and the likelihood of consumer confusion should also be taken into account concerning this question, should it also be associated with well-known marks. The article builds up the thesis that the popular trademarks have legal afterlife by framing the discussion within a broader framework of digital commerce in order to be able to survive even after its productive commercial life.
The Digital Age of Trademark Use: Broadening the Limits of Commercial Presence
The concept of “use” is central to the trademark law because it is not only on its ground that the right is acquired but it is also a prerequisite to its continuation. The interpretation of the word “use” as stipulated in the Trade Marks Act, 1999[2] has been deliberately formulated in wide terms to capture the nature of modern trade. Section 2(2)(b)[3] stipulates that a mark will be deemed to be used in reference to goods or services when it is used in any physical or any other relation whatsoever. This general statement allows the courts to view use in such a way that does not restrain the changing business practices, especially the digital arena.
The judicial interpretation has been instrumental in creating this interpretation. In Hardie Trading Ltd. v. Addisons Paint and Chemicals Ltd.,[4] the Supreme Court acknowledged that the use need not be limited to physical sale or distribution but can extend to advertisement and promotion activity which provides a relationship between the mark and the market. This method is an expression of pragmatic understanding that trademarks as a means of communication not only provide information about the source and quality of goods or services, but also do so when there are no actual transactions between buyer and seller.
The traditional measures of usage become more diluted on the digital platform framework. A brand such as “Twitter” is in a state of an ecosystem, in which its identity is not only reinforced by its services but also by its communication with the users, by being mentioned in the media, and as part of the cultural discourse. Nevertheless the popularity of the term “Twitter” as a point of reference to the service still lingers by the consumers, journalists, and third parties even after the official rebranding of “Twitter” to “X”. Such constant presence is one of the issues of the conventional idea of non-use because the mark remains functional in the larger informational space.
The digital era, therefore, necessitates the reconsideration of the idea of use, redirecting the emphasis on the aspects of physical presence to the perceptual and communicative relevance. Within such a system, the continued recognition of a mark in the public domain can be a use in itself, and thus complicates attempts to classify the mark as abandoned.
Non-Use and Abandonment under Section 47[5]
The Trade Mark Act, 1999[6] gives the legal ground upon which trademarks are removed due to non-use in Section 47.[7] The provision speculates on two situations; first, circumstances in which the mark has been registered in the absence of a bona fide intention to utilize it, and the second, circumstances in which the mark has not been utilized in a continuous period of five year and three months. Although the language in the statute may seem very simple, the judicial interpretation has greatly influenced its application.
It has always been the opinion of Indian courts that non-use, per se, is not an adequate basis to remove the mark unless in combination with an ‘intent to abandon use’. This interpretation was authoritatively stated in American Home Products Corp. v. Mac Laboratories Pvt. Ltd.[8] whereby the Supreme Court said that abandonment had both a factual component (non-use) and mental component (intent to relinquish rights). Intent is also a prerequisite which acts as a protection against arbitrary termination of trademark rights so that they do not punish the proprietors as a result of temporary inactivity or prudent business decisions.
The burden of evidence in cases of abandonment is equally high. The courts have insisted on express and beyond reasonable doubt evidence of non-use and intention and have not accepted non-use and intention claims based on a mere innuendo or speculation. This high standard is in lieu of the fact that trademark rights are valuable commercial property that should not be destroyed easily, once created.[9]
The use of Section 47[10] in terms of rebranding is especially complicated. The discontinuation of a mark can be a part of a conscious policy to reposition the brand and not an indication of intent to abandon it. In such cases, the proprietor can still retain an interest in the mark as either for defensive purposes or for potential future use. The mere absence of active use, therefore, cannot be equated with abandonment.
Using these principles to the case of the “Twitter”, it is clear that the rebranding to “X” do not necessarily meet the requirements of the provision of Section 47. While the visible use of the mark may have diminished, there is no indication of a desire to permanently waive rights has been established. In fact, the further identification of the mark indicates that it has not yet lost its commercial and reputation value thus defeating any claim of abandonment.
Well-Known Trademarks: Recognition as a Free Standing Source of Protection
The idea of widely recognized trademarks takes a focal point in the contemporary laws of trademarks because it has been acknowledged that some marks obtain some degree of distinctiveness and reputation that go beyond their immediate commercial environment. Section 2 (1) (zg) of the Trade Marks Act 1999[11] defines a well-known trademark as a mark that has come to be recognized as well known by a significant section of the population that its use in connection with other goods or services would create the impression of association with the proprietor.
In determining whether a mark is well-known, Section 11(6) to Section 11(9)[12] contains a detailed framework for determining whether it qualifies as well-known mark, considering the duration, extent of use and geographical reach of the mark. Such provisions indicate that they reflect a change of a strictly use-based model of protection to a model, which stresses on reputation and consumer perception.
Section 29(4)[13] which extends the infringement to a situation involving dissimilar goods or services is an additional reinforcement of the enhanced protection given to the well-known marks. This is in recognition of the fact that the value of well-known mark is not just in its use in association with particular products, but it further has a greater reputational sense. The use of such marks out of context without authorization may thus lead to dilution, although no confusion may arise.
This principle has been practiced throughout judicial rulings. In Daimler Benz Aktiengesellschaft v. Hybo Hindustan,[14] the Delhi High Court, pointed out that marks having a global reputation should not be left to be misused by others. The rationale of the court highlights the fact that reputation, once established, becomes an independent source of legal defence, and will be able to maintain the mark even in the absence of continuous use.
The mark in the case of “Twitter” is certainly the well-known as per the meaning of the Act. Its recognition spreads across jurisdiction and social groups, and its connection to social media communication is entrenched in the minds of the populace. This permanent reputation creates the impression of the mark that it cannot be easily put out by the simple fact that it is extinguished by the mere cessation of active use.
29 (6) and Digital Extension of Trademarks Service
Section 29(6)[15] of the Trade Marks Act plays role in extending the meaning of “use” as much as the question of infringement is involved. The provision recognises the fact that the usage may be in various forms like advertising, business communication and electronic media. This broad position reflects the reality of modern business where trademarks have gone on to signify communication within a larger informational infrastructure.
With the digital era, greater confusion between proprietary use and third-party reference. The reason why the word Twitter is still used in news coverage of media, in discussions in online forums and Twitter social media suggests how the mark has been maintained as belonging to the public sphere.
In certain instances this use may be an infringing use particularly where it is intentionally to take advantage of the residual goodwill that is held in the marks. At the same time, not all references to a trademark are infringements. The law does not reject the validity of descriptive and referential use, provided that it does not confuse or misuse the reputation of the mark. The issue is how to establish the distinction between the acceptable reference and unauthorized use particularly where there are already popular marks.
The impossibility to ascertain non-use in the ordinary sense is reiterated by the further use of the digital residues of the word “Twitter”. Though it is not utilized directly as property, the mark itself is still one of the references in the digital ecosystem, thereby maintaining itself relevant and enabling its legal protectability to increase.
Residual Goodwill and the Persistence of Trademark Identity
This idea of residual goodwill extends a critical lens through which the survivability of trademarks following rebranding can be explained. Goodwill is the intangible worth of a business which includes the reputation, customer loyalty and assimilation of people to a mark. In contrast to tangible resources, goodwill does not dissipate as soon as usage ceases but it may persist along and serve as the source of consumer perception.
The rule can be foundational work in Star Industrial Co. Ltd. v. Yap Kwee Kor[16] where the Privy Council acknowledged that goodwill can endure despite the termination of business activities. The Indian courts have also recognised that the worth of a trademark is not based only on the current commercial usage but especially in instances of the famous marks.
In the example of “Twitter”, the goodwill is persisting in the continued usage of the word in the normal language and media usage. It has become so identified with microblogging and online interaction to an extent that there is a degree of cultural embeddedness that goes past its commercial roots. This enduring association implies that the mark still continues to function as a source identifier even when it is not used actively.
The existence of residual goodwill, therefore, allows the concept of a legal afterlife of known trademarks so that even after technical termination, those still remain under legal protection.[17]
Passing Off and Continued Protection
The doctrine of passing off offers another point of protection of trademarks, which is based on the maintenance of goodwill and avoidance of false representation. In comparison to statutory infringement, which is based on registered rights, passing off is a common law remedy rather than an unregistered right since it seeks to protect unregistered marks based on their reputation.[18]
A classical statement of passing off in the case of Reckitt and Colman v. Borden,[19] demonstrates goodwill, misrepresentation and damage. Under the circumstances of Twitter, the presence of goodwill implies that misrepresentation could arise when third parties use it without authorisation. This can lead consumers to be deceived that this kind of use is linked or supported by the parent platform hence resulting in reputational and economic damage.
The presence of passing off as a remedy goes in favor of keeping the mark legally relevant even in the context of rebranding.
Comparative Perspectives
A comparative study indicates that there is a wide consensus in the way abandonment is dealt with in common law jurisdictions. Both the United States and the United Kingdom are aware that non-use has to come along with intention of abandonment. Although Lanham Act[20] provides a type of presumption of abandonment in case of not using it in three years, it is still rebuttable and takes into consideration the evidence.[21]
The Indian model is more aligned with the UK one as it focuses on the intention and consumer perception rather than on the strict time limits. This correspondence is helpful in the context of a more multi-dimensional and situation-specific response to post-rebranding situations.
Conclusion
The fact that the rebranding of the mark “Twitter” to “X” does not, in itself annul the legal protection of the former mark. The intention, reputation and consumer perception as emphasized by the Indian trademark law offers a sound basis upon which the existence of well-known trademarks even when not in operation can be maintained. The doctrine of abandonment should be undertaken carefully and there should be a clear evidence of non-use and intention to give up the rights.
Also, famous trademarks have a “legal afterlife” because of the residual goodwill and long-lasting identification by the public. In a digital era where brands have to function in multi-layered and changing ecosystems, the survival of the trademark will have to be evaluated not as based on formalistic standards but following more holistic and consumer-focused measures. To that end, the mark “Twitter” continues to be capable to seek protection in the form of legal protection and hence, the reaffirming of centrality of reputation in contemporary trademark jurisprudence.
[1] Trade Marks Act, 1999, No. 47, Acts of Parliament, 1999 (India).
[2] Supra note 1.
[3] Trade Marks Act, 1999, § 2(2) (b), No. 47, Acts of Parliament, 1999 (India).
[4] Hardie Trading Ltd. v. Addisons Paint & Chemicals Ltd., (2003) 11 SCC 92.
[5] Trade Marks Act, 1999, § 47, No. 47, Acts of Parliament, 1999 (India).
[6] Supra note 1.
[7] Supra note 5.
[8] American Home Products Corp. v. Mac Laboratories Pvt. Ltd., (1986) 1 SCC 465.
[9] Andrew Keyes, IP Lessons from Twitter: Avoid Trademark Cancellation Through Bona Fide Use, Kronenberger Rosenfeld LLP (Dec. 9, 2025), https://kr.law/news/article-detail/avoiding-trademark-cancellation-through-bona-fide-use
[10] Supra note 5.
[11] Trade Marks Act, 1999, § 2(1)(zg), No. 47, Acts of Parliament, 1999 (India).
[12] Trade Marks Act, 1999, §§ 11(6)-11(9), No. 47, Acts of Parliament, 1999 (India).
[13] Trade Marks Act, 1999, § 29(4), No. 47, Acts of Parliament, 1999 (India).
[14] Daimler Benz Aktiengesellschaft v. Hybo Hindustan, 1994 SCC OnLine Del 239.
[15] Trade Marks Act, 1999, § 29(6), No. 47, Acts of Parliament, 1999 (India).
[16] Star Indus. Co. Ltd. v. Yap Kwee Kor, [1976] FSR 256 (PC).
[17] King Stubb & Kasiva, Trade Mark Issues Relating to Twitter’s Rebranding as X, KS&K (Sept. 14, 2023), https://ksandk.com/intellectual-property-rights/trade-mark-issues-relating-to-twitters-rebranding-as-x/
[18] Nicole Berkowitz Riccio, Twitter’s Recent Rebrand: A Guide to Keeping Your Trademark Rights Alive, Baker Donelson (Aug. 2023), https://www.bakerdonelson.com/twitters-recent-rebrand-a-guide-to-keeping-your-trademark-rights-alive
[19] Reckitt & Colman Products Ltd. v. Borden Inc., [1990] 1 All ER 873.
[20] Lanham Act, 15 U.S.C. § 1127 (2018).
[21] Lucie Hunter Fisher & Stephen Hall, Taking Flight on Another’s Wings – The Potential Abandonment of Twitter’s Iconic Trademarks, JDSupra (Dec. 22, 2025), https://www.jdsupra.com/legalnews/have-iconic-twitter-trademarks-been-7736240/
Authored by: Ms. Umang Shewani, Institute of Law, Nirma University
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