This article is written by Ananya Agarwal, pursuing a Diploma in Intellectual Property, Media, and Entertainment Laws from Lawsikho.
Gone are the days when Instagram was used as a mere photo-sharing platform. Launched in 2010 solely for iOS, the app had humble beginnings but it soon gained popularity so much so that by 2018 it had over a billion users. Clearly, it holds the attention of a lot of the modern global population, making it a popular marketing and branding platform and no new company can now ignore its existence. This important business tool is concerned with content generation and needless to say, that involves the protection of intellectual property.
As a brand seeking to advertise on Instagram, it is essential to retain the authenticity of your brand. In lieu of the same, this article discusses brand/trademark infringement and how to protect yourself from the same with the help of the available legal tools.
How can your brand be infringed?
Several brands will swear by Instagram marketing due to the ability to reach new markets and ease of media sharing. However, Instagram does come with its own host of issues. The crucial legal issue that crops up with advertising on Instagram is brand dilution and infringement. Many times users find their content being duplicated and shared without their consent or even whole duplicate pages. This is done with the sole intention of confusing consumers as to the authenticity of the pages. Further, it is easier to evade responsibility several times when traditional methods are enforced due to jurisdictional issues and ambiguity as to the identity of the infringer.
Important business material, content, images, brand name and logo have the ability to be protected under different IP laws. You can use a trademark to protect your business name, logo or slogan from other traders in relation to the goods and or services you provide. A trademark provides legal protection to use your brand exclusively and prevents competitors from using a brand that is too similar to yours. This includes if competitors’ reference, copy or use your trademark on Instagram or Facebook.
Infringement by username
It is important to note that as according to the Instagram Trademark Infringement policy, trademark infringement occurs when:
- A person uses a trademark owner’s trademark (or similar trademark) without permission.
- That person’s use is in commerce, meaning that it’s done in connection with the sale or promotion of goods or services.
- That use is likely to confuse consumers about the source, endorsement or affiliation of the person’s goods or services.
The important aspect it adjudges is the ‘likelihood of confusion’. Therefore, even though Instagram usernames are allotted on a first come first serve basis, you may report a username for trademark infringement if it is deceptively similar to your trademark and operates in the same business and within the same geographical limits.
Does crediting excuse infringement?
Often people credit the creator when reproducing their work entirely which is an action although in good faith, many times not enough. We were taught in school than copying someone else’s work without crediting them as plagiarism. However, it is important to understand that plagiarism differs from infringement in the sense that plagiarism is essentially an important academic norm that aims to provide attribution for intellectual thoughts. The legal doctrine protection from infringement, on the other hand, is a derivative of property right which aims to ensure creators receive payment for their creative efforts. In economic terms, copyright protection incentivises an artist’s investment into their work, by offering a means by which to prohibit others from using their work without permission. Crediting a content creator with a hashtag or @-ing them in a caption, although typically a welcome gesture, does not in and of itself excuse copyright infringement.
Nexus between brand and trademark infringement
In today’s world, trademarks have been imprinted in people’s minds to such an extent that the product is the brand and not the other way around. Take for example products like Casio, Pampers, Band-Aid. Their trademarks have dominated their respective industries so much that the product is commonly referred to by the brand name. This shows the importance of a trademark to a brand or company. Therefore, oftentimes for the protection of their brands, companies officially register their trademarks. This registration provides legal ownership over the brand name, logo etc, which implies that the owner has exclusive rights to use, sell, modify the trademark. It protects the brand name from usage by others. Violation of a registered trademark can result in a suit for trademark infringement. Here, solely proving a deceptive similarity would suffice in a court of law.
However, when the trademark is not registered, the owner still has a remedy of filing a suit for passing off of the trademark. Here, the plaintiff must not only prove a deceptive similarity but also the economic value and goodwill of its brand name. In lieu of the same, the following section deals with how to deal with trademark infringement on Instagram.
How to resolve the infringement?
Contact the infringer informally
The first step, before approaching any legal measure, would be to notify the infringer that their act is amounting to infringement and ask them to take down the infringing content. It is important to note that although many times a brand may be tempted to bill the infringer retroactively for the use of their trademark, such a practice sets a bad precedent since the requirement to pay an amount for use of the trademark is usually decided via a contract. Thus, if such a contract does not exist, payment is improbable. This method is entirely dependent on the infringer’s willingness to cooperate.
Use Instagram’s infringement policy
If the infringer refuses to cooperate, the next best option is to use Instagram’s policy regarding trademark infringement. When signing up to use the platform, potential users agree not to violate someone else’s rights and so on a report of infringement is sent to Instagram via a form or email, Instagram can investigate such allegations of trademark infringement and if proven can delete the infringing content. This form requires that you must be the registered owner of the trademark. Further in the form/email you must describe your trademark and place of registration and provide details of the infringing material including URLs. Lastly, you must include a declaration in good faith.
This entire process is in line with DMCA. To give context, DMCA, which is American legislation, stands for Digital Millennium Copyright Act. It was brought about so as to comply with certain WIPO treaties with the intention of creating liability for unauthorised dissemination of copyrighted work. At the core of this Act lies a DMCA takedown notice. This is a form of remedy available to one whose copyrighted work is being infringed on a user content generation platform. Such a notice can be issued by the complainant to the digital platform or service provider for copyright violation on the said platform.
However, there are certain issues with the mechanism provided by Instagram:
- Your contact details may be shared with the alleged infringer via Instagram
- Since Instagram is such a large platform, redressal may be slow and inefficient
- Instagram cannot absorb the powers of a legal court and adjudge cases of substantial trademark infringement between third parties.
Common challenges faced by brand owners
As established earlier, to take any action against trademark infringement a report has to be formulated to be sent to the platform. Proving that you have rights in the appropriate jurisdiction and in respect of relevant products and services are two components of reporting infringement that can be difficult to prove. When submitting the infringement report, these points should be carefully considered. In certain cases, an infringer may notice a popular brand in one region and decide to replicate it in another. This might lead to the creation of Instagram accounts that incorporate the brand name plus a country name or country code which implies the Instagram account is targeting a particular jurisdiction. If the brand owner has a trademark registration in that country, they can base their report on that registration, obtaining legal advice from a local attorney on any particular wording they should use to support their report. Making the report, on the other hand, will be more difficult if the brand owner does not have a trademark registration in that jurisdiction and must rely on one from another nation.
Another issue arises when the infringer does not use the mark in the context of goods and services. In such cases, certain features of the account, such as a descriptive term in the account name or bio, or a picture of a kind of product posted by the account, may be utilised to make assumptions about the sector of business involved. However, a certain amount of ingenuity may be necessary. The report’s success will be determined by the attitude of the person evaluating it, just as it is with jurisdiction.
Some practical tips to protect your brand
Register your marks
From the above discussion, one thing that any brand can glean is the need to have registered trademarks. The Instagram mechanism can only be kicked into action if the disputed mark is registered. If the matter ultimately reaches courts, if the mark is not registered, only a suit for passing off may be instituted. A suit for passing off is less favourable than a suit for infringement primarily because passing off has the additional requirement of proving that the mark has some monetary value to the brand. Further, if you have started a business on Instagram, be sure to legitimise it by creating a legal entity and registering it with the Registrar of Companies.
Do not take a brand’s name in vain. While marketing, be sure to only take names or use logos of companies you have gained consent from. Further, disclose partnerships to the public in a way that legitimises the use of brand names so as to not confuse the public whether the said advertisement is a collaboration or a misuse of the brand name.
Draft the right agreements
Needless to say, one of the most rudimentary requirements for protecting your business and thus your brand is the drafting of air-tight agreements. In terms of advertising on Instagram, it is important to include a clause that explains what happens in case Instagram deletes or suspends your accounts. One has heard stories where Instagram has deleted accounts for seemingly no reason. Therefore, as brand-owner marketing on this platform, be sure to tie up all such loose ends specific to Instagram.
In conclusion, I believe that Instagram has endeavoured to create a solid mechanism to protect brands that align with the main tenets of the DMCA. Due to this, its legitimacy as a market has increased manifold. However, in the end, the ultimate responsibility of protecting the brand lies with the brand itself. In view of the same, it is not only important to understand the nature of infringement but the remedy available too. Conversely, it is essential to understand how your actions as a brand may infringe on another brand so as to not face repercussions of Instagram’s redressal mechanism. Thus, keeping in mind the above-discussed points, a brand can surely make use of the dynamic platform that Instagram is.
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