Twitter is an exemplary model for a lot of social media. Since the publication of the first tweet in 2006, the company has grown to over 175 million registered, users averaging 95 million tweets a day. Its enormous growth and popularity has often been compared to Facebook’s rise, although such comparisons have been debated.

The company has certainly proven itself capable of competing for user attention with the likes of Facebook, MySpace, and LinkedIn. Despite its accomplishments, Twitter has dropped the ball in at least one respect—it has inadequately protected its intellectual property rights. It was not until 2009 that Twitter filed its first trademark application for “tweet” with the USPTO. The Office preliminarily denied it in August 2009 because another company, Twittad, had already successfully registered “Let Your Ad Meet Tweets” in 2008. Ultimately, the USPTO denied Twitter’s application on December 2010 because it found that the two marks were too similar in “sound, appearance, and meaning.” Undeterred, Twitter re-filed their application, but the USPTO has rejected it yet again.

Under Section 2 of the Lanham Act, marks that “so resemble a mark registered in the Patent and Trademark Office . . . likely . . . to cause confusion, or to cause mistake, or to deceive” cannot be registered for trademark protections. In this case, the Office believes “tweet” and “Let Your Ad Meet Tweets” is so similar as to be potentially confusing to consumers as to the source of the services.

All is not lost for Twitter though. The social media powerhouse could try to challenge Twittad’s registration by claiming a priority of use of the mark “tweet.” However, challenging the registration is likely to be a long and difficult process. A more diplomatic approach may be to contact Twittad and seek an assignment. But Twittad is in a comfortable position right now—knowing that Twitter wants and does not have the “tweet” mark—and will likely use its position for bargaining leverage.

Other burgeoning media should look to Twitter as a good example of a fast-growing social media service that did not adequately anticipate or legally protect its growth. With Twitter’s second rejection from the USPTO, Twittad can comfortably say that the early bird gets the tweet.