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Instgram Inside/Outside

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by

Sabby H. Johnstone

on 1 November 2013

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Transcript of Instgram Inside/Outside

NEW API - Instagram developers may fairly and accurately indicate that their applications are compatible with Instagram, but may not use the Instagram trademarks in their own brand, or suggest that Instagram sponsors or endorses their product.
Finding the Mark - Instagram
The Strength of the Mark
Risks Associated with the Chosen Trademark
Any Alternate Trademarks?
What else could be used and strong?
Creating marks can be difficult because it's hard to know what consumers will associate with.
The Competitive Landscape
Determinations before choosing a Trademark
Distinctiveness - Identifying source of product
Secondary Meaning - only product associated with name
Acquired Distinctiveness
Maintaining Distinctiveness
Outside Counsel Considerations
Purpose of Outside Counsel.
Trademark Law Issues
Proving Infringement
Enforcement
Contracts
Costs of Rebranding
Third Party Apps with Valid Trademarks
Legal Analysis
Instagram needs to show that Insta and/or Gram are enforceable marks.
Recommendations
Legal - need to enforce the mark and protect against others building off of your good will, and inferring sponsorship.

Business - 3rd party apps add to the product. Is the competition such that if you lose apps, you are still strong?
Spectrum of Distinctiveness
Generic Terms - Salt
Descriptive Marks - Sweet'ums
Suggestive Marks - Blu-Ray
Arbitrary Marks - Apple
Fanciful Marks - Kodak
"photoshopped" - "modified by Adobe® Photoshop® software."
About Instagram
Instagram is an online photo-sharing, video-sharing and social networking service that enables its users to take pictures and videos, apply digital filters to them, and share them on a variety of social networking services
A distinctive feature is that it confines photos to a square shape, similar to Kodak Instamatic and Polaroid images, in contrast to the 16:9 aspect ratio now typically used by mobile device cameras.
Currently Instagram makes no money, but starting in 2014 they will be adopting a sponsored ad format similar to Facebook.
Money Money Money
This was announced October 24, 2013
Proposed Uses for the Trademark
Start Up?
Launch of new feature?
House brand?
New Idea never done before?
Expansion?
Global Application(s)?
Use Determines Plan
Start-Up - use in commerce to establish mark and then register mark



Expansion of existing Mark - Intent to Use to protect Mark before launch. (Analogous Use)
Thinking Globally
Companies that deal in the internet and apps need to take into consideration global trademarking from ground zero since many countries are first to file.
Serves as constructive notice to the public of the registrant's ownership of the trademark
Establishes a legal presumption of your ownership of the mark and your exclusive right to use the trademark nationwide on or in connection with the goods and/or services listed in the registration
Allows the registrant to bring an action concerning the trademark in federal court
U.S registration can be used as a basis to obtain registration in foreign countries
Can be filed with U.S. Customs to prevent the importation of infringing foreign goods
Benefits of Registration
Genericide
Word Mark
Design
Stylization
Logo
Genericism
Loss of Rights
First in area - risk of having your name used to describe. (ie - aspirin)
Genericism and Confusion - Secondary Meaning (remember Photoshop)
Depending on size of the in-house legal department, sending difficult litigation outside.
Facebook has done this same thing and enforced it against third party apps.
Most of the apps do not have trademark protection, but some do.
Instagram does not own INSTA or GRAM, nor have they filed for them.
Rebranded App
Stylized like Instagram?
Derivation of Insta
Stylization Issues?
Using Instagram Brand Assets

Find Instagram logos, images, and other assets and learn how to use them.

Instagram, the Instagram Logo, and the Instagram Camera Logos are trademarks of Instagram and may only be used as provided in the guidelines below.
http://help.instagram.com/304689166306603/
Full transcript