Is a social media presence alone enough to create protectable trademark rights? Not so, says the U.S. Patent and Trademark Office's Trademark Trial and Appeal Board (TTAB).

To prove trademark infringement or to win an opposition, a plaintiff or opposer must prove two things: that it used the infringed mark first, and that the defendant's use of the mark is likely to cause confusion with its own. But proving prior use can be a tenuous argument if the instance of such use is but a social media presence, not manifestly linked to the services of an entity.

The Lanham Act § 2(d) states that a mark cannot be registered if it is confusingly similar to either a registered one or to one previously used in the United States by another and that has not been abandoned. In USPTO oppositions and cancellations, some form of pre-sales activity can constitute trademark use sufficient to establish priority so as to prevent registration of a mark to another who was first to actually sell goods under the mark. Though not strictly trademark use on a product that is sold, this is called a use “analogous to trademark use.”