Instagram insists littergram app is renamed
bbc.com
bbc.com
The idea that large companies can own a word, that they themselves have appropriated, is at least egotistical, at worst unethical (imo).
The problem arises when a company looks to abuse its trade mark rights and prevent usage of other brand names which to most reasonable people would never actually be confused with the trade mark owner's brand.
I always want to be in the underdog's corner, but I have sympathy with Instagram here I must admit. The origin of 'gram' is irrelevant. The fact is that we are dealing with two apps with very similar functionality, who both share the word 'gram'.
On that basis, I think there is a high likelihood of confusion in relation to the origin of the app. There's a decent chance that a certain proportion of the relevant population could think that Littergram is an official offshoot of Instagram.
It's also likely that the name was also chosen to free-ride off Instagram's goodwill to attract attention to the app.
To be fair though, he has got good publicity for the app as a result of the cease and desist, which if he hadn't named it Littergram he would never have got. I doubt Instagram would pursue a damages claim and so both parties can presumably walk away if he changes the name.
Car manufacturers and other industries spend fortunes on branding, app manufacturers by contrast appear to feel obligated to choose a random word and then scream "this is mine now talk to legal la la la I can't hear you".
Ianal but I would (theoretically and against my real lawyer's advice) argue in court that Instagram should have had better foresight than to use an already established word that is taken to mean "short message of indiscriminate content".
Of course the easy way out here is for Insta- i forget, oh yes gram, to pay the littergram bloke's costs for changing the name of his app and then help him to promote the new name. Saying as he is actually doing something a lot more worthwhile than sending shitposts from teen to teen. But why let decency get in the way of POWERSTRIDES THROUGH THE OFFICE LIKE A TRUE TECH-CONQUEROR SPITTING ON THE COMMONERS ... I FEEL SO STRONG NOW, NO-ONE CAN CHALLENGE ME.
I mean, the guy is trying to stop littering, he's not doing anything untoward.
In terms of the motivations, sure the guy is trying to stop people littering, but next thing you know, he's transitioned into selling ad space and is making his millions, all after free-riding on Instagram's goodwill in the name. I'm being facetious of course, but you don't know what will happen in the future. The context behind the use is also likely to have tempered Facebook's approach to the infringement. For all we know, they may have offered to help with the rebrand costs.
I don't know of many companies who adopt a completely over-zealous approach to trade mark enforcement. Do you know any that fall within the type you describe in your post?
Finally, I don't know who your lawyer is, but in the unlikely event the matter went to court, or to a trade mark authority's dispute resolution process, you would run an argument precisely in line with the one you describe. You would look to have the trade mark registration invalidated on the basis that it is descriptive and was therefore not suitable to be registered. I don't think you'd get very far but you'd make the argument all the same.
Let's take a ridiculous example, and say this guy changes his app name to "Littergram - a random mobile app that is completely unrelated to Instagram, and in no way whatsoever affiliated with Instagram, Inc. We are NOT Instagram.". How could they, at that point, argue this could confuse people?
However there are some weaknesses in the solution (and reasons therefore why a brand owner would continue to pursue). When it comes down to it, the trade mark itself is still problematic, and there will still be cases where the trade mark is used in the absence of the disclaimer. Also, as a brand owner I don't want to have to continue to monitor the third party user just to make sure they continue to use the disclaimer.
Also, in addition to the confusion argument, there is also the argument that absent confusion, the third party is essentially looking to free-ride on the goodwill of the brand owner. That cause of action doesn't require confusion to be proved.
It's really down to Instagram and how they want to play it. Having a settlement agreement obliging Littergram to include the disclaimer in various places at all times may be sufficient. But the fact is, Instagram hold quite a strong hand and don't need to settle for just disclaimer, nor for the above reasons would that be advisable.
But can one consider that infringement? I would assume something like that to fall under a fair use doctrine in most jurisdictions.
Let’s say I invent a set of amazing tires for Audi cars (they only fit on an Audi car), and I sell them for half the price of a set of official Audi tires. I brand these tires as “AmazingTires for Audi”, with a disclaimer that I am not Audi, but a third party.
In this scenario, you’re riding on the goodwill of the brand, and the brand owner might oppose. However logically I would assume something like this not to constitute infringement, as you are not actually damaging the brand (if the product is good) and there is no other way to describe your product without using the Audi brand name.
INSTAnt teleGRAM
Looks like a mashup of two words...
"Littergram invites people to share pictures of rubbish."
It's pretty clear that -gram here is used to signal that this is a picture sharing app.
If Instagram didn't exist it's unlikely Lucas would have called his app Littergram.
But yes, I agree, the similarity in app functionality suggests that the name derives/can be confused with Instagram as opposed to a telegram, and so there may well be merit in the C&D.
I think they put the wrong app name in there. Given that sentence, they are identical apps.
If you or I put up a banner "littergram kitchen" inside of our kitchen and no one knows about it but friends and residents.. there's no problem.
Hell if "littergram" becomes used by a few dozen people, no problem. Enter the same marketplace as "instagram" and voila, namespace collision. (Well almost, littergram != instagram but you see what I mean).
I wonder what the world would be like if copyrights used proper namespaces? Maybe we there would be a dearth of companies missing vowels in their title..
(b) trademarks are namespaced, both by business and geography. As a quick example, different Otto pizza chains ran peacefully in NYC and in Portland, ME. There only was an issue when they both tried to expand to Boston at the same time.
(c) missing vowels has nothing to do with collisions. I cannot create a company called flicker that hosts photos. I also cannot create a social network called facbook. Present or missing vowels do not make a difference. Missing vowels started with getting a web address, then became a fad.
When I complied and removed the Instagram reference they then decided to extend it to all Facebook references (like button, Facebook upload, etc) on the grounds that people might get the insta prefix confused with Facebook since it owns Instagram.
Not allowing uploads from Facebook or Instagram through file picker.io probably had no effect since almost no ones uses it, but not having a like button may have had some effect.
Google also considers likes for search ranking. It would have been much worse if we already had a Facebook following.
To compensate we focused on Twitter and other ways to gain SEO.
1. Most people are clueless about the law / their rights. Companies will try and bully you into taking your site down, without any legal basis.
2. Read up on nominative fair use of a trademark. You are allowed to make use of a competitors trademark, even for commercial purposes.
3. You probably didn't have to make any of those changes. While I'm not a lawyer, both legal departments backed off after sending them a well-argued reply to their bullshit (sorry, that's the only way to describe it) arguments. I do work with an excellent IP law firm, but I didn't even have to contact them to handle this.
4. I highly doubt a tech company would sue you in a meritless case. Even a simple case will cost them $30-50k. The in house lawyer contacting you is often a paper pusher that has to scout the internet for "possible infringements" of the mark. They'll need to get approval to sue you, and risk vs. reward will be considered. If you're based outside of the US, even better. They'll usually have to sue you in your local jurisdiction.
5. Obviously, be prepared to fight if they do come after you.
http://www.slutsofinstagram.com
Link is SFW, about a magical duck named Slutsof and his tales in the land of Stagram.
It occurs to me that my brain now readily connects these brands to trash. There was a time when that wasn't the case.
Perhaps they could contact Polygram and use paper with a monogram of a decagram, hexagram, octagram, parallelogram, trigram, or pentagram.
If we prapared a cartogram or histogram it could serve as a diagram of their foolishness.
It would certainly serve as an epigram to this whole program and then even an engram will not find a memory of it.
Sounds like a titillating story, I'd be love to read it if you post it.
I would now like to create an app that sends snapshots of what random things weigh, and call it gramgram. Any drug dealers on HN with a lot of ill-gotten investment cash looking to be laundered can contact me at HSBC HQ.
That would be _super_ inconvenient. I think they are being right arsegrams about this.
If they plan to do this in a UK court then he can represent himself pretty cheaply. Think of all the publicity.
I'm not a lawyer but I've been watching Suits (3 Seasons), I could definitely win this for the guy.
Let me know how I can help.
How about my hydraulics company BigRam?
Suppose you think Apple are infringing Facebook by using the term face-time?
Good TM protection is stopping people from using your trademark in a way that confuses the origin of goods/services of theirs as being yours.
Littergram if surely a reference to sending a message (-gram) about litter.
Similarly, FWIW, Instagram aren't ripping off Instapaper either in my opinion but they're a lot closer to it than the Littergram service.
If Instagram wanted a more unique name they should have chosen one that wasn't the combination of a well-known prefix and suffix.
Unlike kissograms, or even the Telegram app, Littergram is specifically about photo sharing, which risks confusing people into believing they and Instagram are related.
TBH I think the guy has done a good job of getting publicity. He should use this opportunity to get some goodwill, and use the publcity to change the name to something close enough but not infringing.
I'll offer LitterBot ;)
Actually, this may be one of the best things that could happen to LitterGram from the marketing point of view, I too had tweeted to FB and Instagram asking them not to be so narrow minded.
Now it's a pure advertising machine. If Facebook disappeared tomorrow, not much would be lost.
IMHO the first option sounds formal and archaic. The second sounds more in tune with contemporary English.
That said "insists they rename it" would get rid of the passive and avoid the problem entirely.
I thought when I read the headline that Instagram was insisting (that is, reiterating) that Littergram was already renamed.
Contemporary American English, sure. The former form is still quite popular in British English
Not sure how the dupe detection works here, but I submitted the same exact link yesterday.
Would Facebook really bother with blackmailing (court fees are expensive) a small nonprofit into changing it's name?
And what about my valentine's day Candygrams from 10, 20 years ago? Should we rename those too?
This seems a bit ridiculous.