Instagram Claims Rights to “Insta” and “Gram”
Instagram, the popular photo-sharing app, has recently made some waves in the tech community by issuing restrictions on the use of “Insta” and “Gram” on third-party apps.
Instagram has long allowed third party apps access to its API (application programming interface – I looked it up). The API allows these other apps access to some of Instagram’s data so that the apps can work together. Instagram users who download one of these apps may then be able to use certain functions that are not made available in the Instagram app.
This API model reflects a common arrangement in the app world. A growing app will gain users and traction by allowing third parties to promote and develop the app’s core concept. Instagram gave rise to an ecosystem of these third party apps, such as Luxogram (which provides access to many features found in Instagram’s mobile app on a browser platform), Statigram (which shows statistics about an Instagram user’s account), and Instadrop (which connects Instagram with Dropbox).
Last week, TechCrunch reported that Instagram updated the guidelines for app developers that use its API, informing them that they can no longer use “Insta” or “Gram” in the names of their apps – even if those apps have a large existing user base. The TechCrunch article reports that Luxogram’s developer may shut the app down for good rather than change its name.
I feel like it’s important to note, for those who don’t recall, that Instagram was purchased by Facebook about a year ago for $1 billion. Maybe this is part of a new policy from on high. More likely, it simply reflects Instagram’s popularity – they no longer perceive a need for similarly-named third-party apps to promote their service, and they would simply prefer to focus on strengthening the value of their brand (and its related trademarks).
From an IP law standpoint, can Instagram assert a valid claim for the right to claim that photo apps using “Insta” or “Gram” in their names are infringing on their trademark? There’s little question that INSTAGRAM has grown into a strong and widely-recognized trademark. They could at least make a reasonable argument that a consumer encountering a similarly-named app could be confused as to the source of the app (there’s the old “likelihood of confusion” trademark test again). And the third-party apps in question are explicitly marketing their connections to Instagram itself.
On the other hand, Instagram didn’t coin “Insta” or “Gram” as they relate to photography – both have been used as part of photographic brands and generic terms related to photography for decades. More to the point, their terms, until this recent change, permitted users of its API to use “Insta” and “Gram” in their names. Do they have the right to simply reverse that policy, even if doing so is commercially detrimental to those developers who took advantage of their API?
The picture is becoming blurrier. Nonetheless, it’s difficult to imagine a court granting a non-compliant third-party developer the right to access Instagram’s API. And the cost would certainly be prohibitive. As with Luxogram, the most likely outcome here is that developers will either comply with Instagram’s new policy or will simply shut down their apps.
The takeaway for the owner of a compelling app is to be clear and consistent in the API’s terms and conditions. If you do permit third-party developers to use a similar name, be sure to state that you have the right to change that policy at any time, and that by accessing the API, the developer is agreeing to your right to make such a change.
