I wish I’d been in that meeting. You know… the one where Facebook decided to hire a scary blue chip law firm to threaten a small non-profit anti-litter campaign over infringing its Instagram trademark.
That’s not because it’s a good example of a multi-billion dollar giant bullying a tiny little company with no hope of defending itself against a mega-lawsuit. Nor is it because of the startling irony of using trademark law to aggressively defend Instagram, a brand that is a deeply questionable trademark to begin with.
No. It’s because what this case represents is no less than an attempt to privatise aspects of the English language itself.
That’s an act of supreme corporate hubris, even for a company that paid out £35 million in staff bonuses in the UK last year… yet managed to pay only £4327 in UK corporation tax. Especially considering that company has a history of defending complex class action law suits, out of court settlements and ongoing allegations of misleading shareholders over aspects of its IPO, breaching copyright, invasion of privacy and conducting unethical psychological experiments on users, to name but a few scandals in their short, but meteoric rise to the top.
In this case, Facebook has instructed Bristows law firm to threaten a small app you’ve probably never heard of called Littergram into changing its name.
Letter of the law dullards will argue, as they always do, that this is an open and shut case. Littergram sounds like Instagram, a bit. And it’s an app that is designed to take photos, tag them, add a message and share it with other users. Which does, on the face of it sound like a description of Instagram. But the story is far more nuanced than that. In the spirit, if not the letter of trademark law, this episode resembles good old-fashioned corporate rent-seeking. It’s a rentseekergram.
Let’s break it down a bit…
Exhibit A: Instagram is a brand that clearly refers to the old Kodak instamatic cameras, popular and world famous for nearly forty years. And the app icon for Instagram appears to be an mildly re-worked version of old model SX-70 Polaroid camera. There may have been no trademark violation intended, but Instagram appears to have unashamedly used naming and imagery borrowed from other world famous products to define itself. Which is basically substance of their claim against Littergram. That’s an Insta-pot-calling-kettle-black-gram isn’t it?
Exhibit B: Instagram boasts over 300 million monthly users worldwide, and is supported by vast advertising and marketing budgets. Its photo content is hugely diverse, and used by thousands of brands to market their products. It is clearly established as a brand leader in its marketplace. Littergram, on the other hand, is a small non-profit anti-litter campaign tool that uses smartphones to snap shots of litter and make the proper clean-up authorities aware of it. The idea that Littergram is harming the Instagram brand in some meaningful way, or that it might unfairly eat into Instagram’s revenues or reputation by a misleading brand association, is more paranoia than probability.
Exhibit C: Whilst perfectly legal, Facebook’s corporate tax avoidance in the UK is clearly a contributing factor to low tax revenues, exacerbating the effects of austerity and driving public spending cuts. The same cuts that contribute to the rising problem of litter, illegal waste dumping and pollution. Which is, of course, what prompted Littergram’s founder Danny Lucas to create the app in the first place. What Littergram is trying to do is assist democratically elected local councils to improve the cost efficiency of providing a basic public service. So the laws of the land are now being used by a foreign tax avoider to interfere in the services that our taxes pay for? Yes. (And also, are you having a laugh or what, Zuckerberg?)
Exhibit D: The inherent rules of the English language contain the suffix -gram, which stems from the ancient Greek gramma meaning “something that is written, drawn or otherwise recorded, akin to a carving.” Logically speaking a photograph of problem litter in a specific location is, quite literally, a littergram. Which means Facebook really is attempting to use trademark law to claim ownership of an aspect of the English language. It is the very worst kind of rent-seeking to lay claim to the nomenclature of the words we use. Especially considering the suffix -gram predates Instagram (telegram, cardiogram, radiogram, mammogram, the list is long and ancient by comparison to both Instagram and Facebook).
On that last point, Facebook has a worrying track record. Facebook has made similar legal threats against many apps that used “insta” or “gram” in their brand names. Even apps that were designed to work with Instagram and directly contributed to its early success.
By coincidence, there is an ongoing lawsuit in the US, where Paramount/CBS is trying to take down a fan movie based on elements of their Star Trek brand. Within that suit, which is now in an appeal process, they laid claim to the constructed language of Klingon, a claim which was dismissed by the courts as being “overly broad”. Understandably so. There may be no actual Klingons, but it is a language and there are Klingon speakers. In fact, the defendants in the case submitted some of their court documents in Klingon (which had to then be translated by the court itself). That capacity for translation demonstrated Klingon is a viable language, it is deemed of “natural use to itself” (i.e. spoken by Klingon speakers) and therefore cannot be copyrighted.
And yet, Facebook has successfully bullied a number of companies into giving-up their rights to legitimately use the suffix gram. And it’s happening again. They are part-privatising the use of English using trademark law as a loophole… much like the loopholes that facilitate their ability to operate a multi-billion dollar global corporation yet avoid paying taxes in many of the countries they operate in.
However, this rather grim moment in Facebook’s history might well come back to haunt them. Much like stag parties in the 1980s, back in the day when Strippergrams were all the rage. Thousands of shame-faced, middle-aged dads now have to explain to their children how they hypocritically bang on about decency and such… but had their photo taken with a policewoman in stockings and suspenders, waggling her boobs over Dad’s cringe-worthy Flock of Seagulls haircut. It’s something that conjures grimaces from younger people, not least for all the overtones of low rent sexism and lewdness. How dad wishes that photo didn’t exist.
In much the same way, there is a generation of people now becoming aware of the venal corporate motivations behind social networks and their schmaltzy social sharing shtick. Facebook, by behaving with all the charm of a tobacco company struggling to suppress reports over smoking and lung cancer in the 1970s, risks exposing their aspirational lifestyle marketing as a deception. A cynical distraction comprised of LOLs, likes and emojis, designed to keep their naïve users “engaged” whilst they jack every last cent out of them.
The likes of Facebook, and Instagram, defined themselves as the underdog when they started. The newcomers who threw out the rulebook of the pinstriped business stiffs who were only after your money. Instagram’s own website describes it as “a fun and quirky way to share your life with friends through a series of pictures” and waxes lyrical about the possibilities of a better world, “We imagine a world more connected through photos.” That’s what they say.
Fun? Quirky? Sharing lives? A world more connected through photos? How long before people work out that aggressive trademark lawsuits and corporate bullying is what lies beneath that stinking pile of trash? It’s no wonder an app that wants to clean-up our environment has got them worried… right kids?
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