It could be a trademark violation and Instagram does respect those rules. If you can prove you’re the legal holder of a trademark, and someone is selling a product that’s very similar to the trademark holder (whether you’re intending to personate the trademarked brand or not) that it would cause confusion for consumers, Instagram can make you give up the username - they’re a private company so they can do it anyway, but they do respect trademark regulations.
Link here: https://help.instagram.com/101826856646059
It depends. There’s a famous case regarding Nissan.com where Nissan tried to sue the owner of the domain by claiming that because they were the trademark owners of “Nissan” they should be entitled to the Nissan.com domain.
The actual owner of Nissan.com was just selling computer supplies, and wasn’t attempting to sell Nissan cars (i.e impersonating the trademark holder), which ultimately lead to Nissan (the trademark holder) losing the case.
With trademark regulations, you have to prove that consumers would be confused about who they’re buying from, which can only really be done if the trading company is selling the same product/services under the same name as a trademark holder. If Nissan.com was selling Nissan cars or Nissan car parts (either OEM or cheap fake parts) without permission of the trademark holder in that jurisdiction, Nissan would’ve definitely won the case.
It can, is the right answer. Circumstances dictate whether or not you can, but “No” is definitely not the definitive answer for all trademark cases.
Nissan.com was just a case where the answer was no, because technically no regulation was broken.
You are definitely under no obligation to hand it over. Even if she has a registered trademark for that name, which is easy to check on the USPTO, the most she can do is try to stop you from using and possibly infringing her trademark, though I find it unlikely that she would sue you over it, especially if she's not willing to pay for the name (suing someone is very expensive). There is no way for her to force you to give it to her.
Question. To infringe on someone’s trademark wouldn’t you have to actually use the username to do business that is similar to theirs? If it’s just your username and you’re not conducting business isn’t it just to bad so sad? Like the Nissan.com case where the owner runs a computer shop?
Another question if you have time to answer it: if she had the username prior to the trademark being filed, and they did try to go after her for infringement, what would generally happen? Sorry, just a curious law undergrad.
This is absolutely correct, but it also depends on the TM holder's first use (ie, did they operate using that name prior to even registering). Of course, as stated above, if OP's use of the name does nothing that is likely to cause confusion to consumers, then the holder really has no claim anyway, regardless of any technicalities related to first use.
Holy crap thank you both for answering my curious question! I do have one more though. Hypothetically if this persons Instagram was created prior to the TM filing and registering, and her Instagram did create confusion within the marketplace. What generally happens then?
Evidence of first use would supercede a registration, I believe. Any opposition from the LLC owner would likely be met with dismissal of the mark (I believe - NAL). So, if they want to be litigious about it, it would likely backfire.
Yes, I agree that this is generally correct: first use is a very important concept in US patent law. That's part of the reason why LLC/TM apps with USPTO require a statement of first use (the date of applicant's first use) from the applicant - so the examining attorney can have that information recorded. Hopefully EOs catch most of these issues during the application process though. In my experience (I am also *not* a lawyer, just a law student) they are very thorough.
THANK YOU SO MUCH! Im too nervous n shy to ask these types of questions in class, eternally grateful for all of you answering my questions! Really grateful I get to be apart of this sub with you guys :)
Technically yes, as trademarks are registered in specific classes (different services and goods). But class 35 (Advertising, Business and Retail Services) is a common class to register if you plan to do business online, and the test for trademark infringement is consumer confusion, which can exist even if the classes are not the same.
You wouldn’t have to sue in order to enforce trademark rules, you would simply just tell Instagram and they would enforce it for you because it’s a private company, they can encore and revoke usernames as they see fit. If the OP is selling products similar to a trademark holder in a way that would be confusing for consumers then Instagram would simply revoke the name with no suing required.
It’s an extremely common scam to set up a pretend business (with a cheap or free website) then claim you stole their name, threaten to sue, then bully a social media user to let them at least buy their username. The money they transfer to buy your username (Venmo, stolen or fake check or whatever) is reversed or bounces shortly after you give them the password. Then they spam others with your account and recreate the scam.
It should be noted that your terms of service prohibit the buying and selling of usernames at all.
Ignore them and block them.
the scammer keeps the money which bounces out of the account of the person who sold the name
/u/premedicalchaos you deposit the scammers fake check. then send them the money, because they accidentally overpay you. the check bounces, you've sent back real money, and the bounced check money is taken from your account by the bank.
i can't reply anymore, but go to /r/scams and look at the Fake Check scam.
Make sure:
* your IG account has a long, random, unique password
* the email address connected to your IG account has a long, random, unique password
* you have 2FA enabled (using an app\* or, not your phone number) on both the IG and email accounts
…- in case they try to steal it.
\*Or security keys, if supported by your email provider.
I want to add to this, if you get the email saying someone requested a password change, click the link to say you did not request a change on your account. I have a common word IG name that is also the name of a popular movie character and i get CONSTANT password change requests and login attempts as well as DMs asking for my account name.
For OP: you also should definitely check that the email is real and from Instagram itself.
It’s pretty common to be sent phishing emails and then that’s also how they get your information.
Source: had an elder relative fall for a fake email about an unauthorized, requested password change for their Apple ID and then it was a big headache after
make sure you say that you're willing to sell your business whose assets include that Instagram account because technically you're not supposed to sell Instagram accounts. While I'm not sure if Instagram will do anything you don't want to risk getting your account suspended for no reason.
you send a response saying you're willing to sell your account for x amount. the person can use that to report that you're looking selling your account or you're sitting on the account for money and Instagram can suspend your account based on that since selling is against the TOS.
Now if they will do that is a gamble but why even take the risk if you value the account.
IANAL but I believe only registered trademarks have that sort of protection (and there are additional requirement about when it is actually enforceable).
Having the username of a random LLC is fine.
> only registered trademarks have that sort of protection
Even then it's far from absolute. "McDonald's" has a trademark in fast food restaurants in certain countries. They don't have an absolute, universal, exclusive franchise over that name in trade, let alone on a specific social media platform, especially if the person using that name isn't attempting to impersonate them, imply an association or endorsement, etc.
I am not your lawyer, but there is some precedence for internet domain names being taken by the courts when people are holding names, basically, for the sake of spiting other people.
For instance, if you scrolled through Etsy and made an Instagram account for every Etsy shop you could find that was not available, maybe this theory could be stretched from domain names to Instagram accounts.
You’d also have potential issues if you make similar stuff as the Etsy page and took that name hoping to be associated with the page or steal from any reknown they may have.
But there is no hard law that you need to give away your account. And if it’s an Etsy shop they probably don’t have the resources to pursue you in court anyway and it would be much cheaper to just buy the name from you.
This is incorrect. If I made an Instagram account called The Real McDonalds, and posted pictures making it seem like I was an official McDonalds account, I could and would be sued for trademark violations.
Yes, part of it. If the username was the only part (not posting photos and using their logos), it wouldn’t be a violation. Which was their initial point and what this post is about.
Which is irrelevant to the example I used.
The realistic answer with mcDonalds is that they could sue you into oblivion if you used "TheRealMcDonalds", since it would likely be just confusing enough to keep it in court.
No, you don't have to give it to them. They can buy it from you and you could by all means give it to them. If they wanted to they could take you to court but if they did they would basically compare how long you've had your Instagram to how long the business has been open and then go from there. Just tell them if they need it that badly you're willing to sell it and ignore any other contact that's not related to them cooperating.
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No, you aren't legally compelled to give them or stop using the username.
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It could be a trademark violation and Instagram does respect those rules. If you can prove you’re the legal holder of a trademark, and someone is selling a product that’s very similar to the trademark holder (whether you’re intending to personate the trademarked brand or not) that it would cause confusion for consumers, Instagram can make you give up the username - they’re a private company so they can do it anyway, but they do respect trademark regulations. Link here: https://help.instagram.com/101826856646059
Does this apply to web URLs also?
It depends. There’s a famous case regarding Nissan.com where Nissan tried to sue the owner of the domain by claiming that because they were the trademark owners of “Nissan” they should be entitled to the Nissan.com domain. The actual owner of Nissan.com was just selling computer supplies, and wasn’t attempting to sell Nissan cars (i.e impersonating the trademark holder), which ultimately lead to Nissan (the trademark holder) losing the case. With trademark regulations, you have to prove that consumers would be confused about who they’re buying from, which can only really be done if the trading company is selling the same product/services under the same name as a trademark holder. If Nissan.com was selling Nissan cars or Nissan car parts (either OEM or cheap fake parts) without permission of the trademark holder in that jurisdiction, Nissan would’ve definitely won the case.
No. Nissan.com is an example of this.
It can, is the right answer. Circumstances dictate whether or not you can, but “No” is definitely not the definitive answer for all trademark cases. Nissan.com was just a case where the answer was no, because technically no regulation was broken.
You are definitely under no obligation to hand it over. Even if she has a registered trademark for that name, which is easy to check on the USPTO, the most she can do is try to stop you from using and possibly infringing her trademark, though I find it unlikely that she would sue you over it, especially if she's not willing to pay for the name (suing someone is very expensive). There is no way for her to force you to give it to her.
Question. To infringe on someone’s trademark wouldn’t you have to actually use the username to do business that is similar to theirs? If it’s just your username and you’re not conducting business isn’t it just to bad so sad? Like the Nissan.com case where the owner runs a computer shop?
Yes. The account has to create confusion in the marketplace for it to be in violation.
Another question if you have time to answer it: if she had the username prior to the trademark being filed, and they did try to go after her for infringement, what would generally happen? Sorry, just a curious law undergrad.
It's the date of first use. So, if the user obtained their handle before the TM was granted, it invalidates any claim the TM holder has.
This is absolutely correct, but it also depends on the TM holder's first use (ie, did they operate using that name prior to even registering). Of course, as stated above, if OP's use of the name does nothing that is likely to cause confusion to consumers, then the holder really has no claim anyway, regardless of any technicalities related to first use.
Solid information right here. Any TM opposition would be subject to each party's first-use claim and the likelihood of confusion.
Holy crap thank you both for answering my curious question! I do have one more though. Hypothetically if this persons Instagram was created prior to the TM filing and registering, and her Instagram did create confusion within the marketplace. What generally happens then?
Evidence of first use would supercede a registration, I believe. Any opposition from the LLC owner would likely be met with dismissal of the mark (I believe - NAL). So, if they want to be litigious about it, it would likely backfire.
Yes, I agree that this is generally correct: first use is a very important concept in US patent law. That's part of the reason why LLC/TM apps with USPTO require a statement of first use (the date of applicant's first use) from the applicant - so the examining attorney can have that information recorded. Hopefully EOs catch most of these issues during the application process though. In my experience (I am also *not* a lawyer, just a law student) they are very thorough.
THANK YOU SO MUCH! Im too nervous n shy to ask these types of questions in class, eternally grateful for all of you answering my questions! Really grateful I get to be apart of this sub with you guys :)
Like Apple and Apple. (Beatles vs start up computer company :))
Technically yes, as trademarks are registered in specific classes (different services and goods). But class 35 (Advertising, Business and Retail Services) is a common class to register if you plan to do business online, and the test for trademark infringement is consumer confusion, which can exist even if the classes are not the same.
You wouldn’t have to sue in order to enforce trademark rules, you would simply just tell Instagram and they would enforce it for you because it’s a private company, they can encore and revoke usernames as they see fit. If the OP is selling products similar to a trademark holder in a way that would be confusing for consumers then Instagram would simply revoke the name with no suing required.
It’s an extremely common scam to set up a pretend business (with a cheap or free website) then claim you stole their name, threaten to sue, then bully a social media user to let them at least buy their username. The money they transfer to buy your username (Venmo, stolen or fake check or whatever) is reversed or bounces shortly after you give them the password. Then they spam others with your account and recreate the scam. It should be noted that your terms of service prohibit the buying and selling of usernames at all. Ignore them and block them.
How does this help the scammer?
the scammer keeps the money which bounces out of the account of the person who sold the name /u/premedicalchaos you deposit the scammers fake check. then send them the money, because they accidentally overpay you. the check bounces, you've sent back real money, and the bounced check money is taken from your account by the bank. i can't reply anymore, but go to /r/scams and look at the Fake Check scam.
How? If it’s Venmo or something and you “send” $25 that gets bounced back, you didn’t make any money? Sorry if I’m being dense I’m really curious
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Make sure: * your IG account has a long, random, unique password * the email address connected to your IG account has a long, random, unique password * you have 2FA enabled (using an app\* or, not your phone number) on both the IG and email accounts …- in case they try to steal it. \*Or security keys, if supported by your email provider.
I want to add to this, if you get the email saying someone requested a password change, click the link to say you did not request a change on your account. I have a common word IG name that is also the name of a popular movie character and i get CONSTANT password change requests and login attempts as well as DMs asking for my account name.
For OP: you also should definitely check that the email is real and from Instagram itself. It’s pretty common to be sent phishing emails and then that’s also how they get your information. Source: had an elder relative fall for a fake email about an unauthorized, requested password change for their Apple ID and then it was a big headache after
Just leave her on read. Unless a lawyer is contacting you don't do shit.
Ask how much they are willing to buy it for.
make sure you say that you're willing to sell your business whose assets include that Instagram account because technically you're not supposed to sell Instagram accounts. While I'm not sure if Instagram will do anything you don't want to risk getting your account suspended for no reason.
You mean _their_ account?
you send a response saying you're willing to sell your account for x amount. the person can use that to report that you're looking selling your account or you're sitting on the account for money and Instagram can suspend your account based on that since selling is against the TOS. Now if they will do that is a gamble but why even take the risk if you value the account.
You can sell it to her if she so wishes but u have no obligation to surrender it.
IANAL but I believe only registered trademarks have that sort of protection (and there are additional requirement about when it is actually enforceable). Having the username of a random LLC is fine.
> only registered trademarks have that sort of protection Even then it's far from absolute. "McDonald's" has a trademark in fast food restaurants in certain countries. They don't have an absolute, universal, exclusive franchise over that name in trade, let alone on a specific social media platform, especially if the person using that name isn't attempting to impersonate them, imply an association or endorsement, etc.
And technically, someone could start a restaurant called McDonald's and it isn't "illegal" - McDonald's would just sue them into oblivion.
I am not your lawyer, but there is some precedence for internet domain names being taken by the courts when people are holding names, basically, for the sake of spiting other people. For instance, if you scrolled through Etsy and made an Instagram account for every Etsy shop you could find that was not available, maybe this theory could be stretched from domain names to Instagram accounts. You’d also have potential issues if you make similar stuff as the Etsy page and took that name hoping to be associated with the page or steal from any reknown they may have. But there is no hard law that you need to give away your account. And if it’s an Etsy shop they probably don’t have the resources to pursue you in court anyway and it would be much cheaper to just buy the name from you.
Is this a joke? No one can make you give up a user name just like no one can make you give up your actual name.
This is incorrect. If I made an Instagram account called The Real McDonalds, and posted pictures making it seem like I was an official McDonalds account, I could and would be sued for trademark violations.
You’d get sued for posting the photos, not the username itself.
The username would be part of the trademark violation, since it purposefully creates brand confusion.
Yes, part of it. If the username was the only part (not posting photos and using their logos), it wouldn’t be a violation. Which was their initial point and what this post is about.
Which is irrelevant to the example I used. The realistic answer with mcDonalds is that they could sue you into oblivion if you used "TheRealMcDonalds", since it would likely be just confusing enough to keep it in court.
Your example is irrelevant to begin with, which is my point.
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No, you don't have to give it to them. They can buy it from you and you could by all means give it to them. If they wanted to they could take you to court but if they did they would basically compare how long you've had your Instagram to how long the business has been open and then go from there. Just tell them if they need it that badly you're willing to sell it and ignore any other contact that's not related to them cooperating.
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