Instagram, with its ever-increasing popularity since being taken over by Facebook in 2012, announced in May 2016 that it is developing business profiles.
The emerging of business profiles
Business profiles, which are entirely free of charge for the business community, will have the same benefits as Facebook business pages. Companies will not only be allowed to post their contact information on the website (telephone number, address, e-mail address etc.), but will also have access to statistics and thus be able to obtain detailed information regarding the reach of their posts.
These innovations will come into place, first in the United States, Australia and New Zealand in 2016 and should then become accessible to the rest of the world by the end of 2016.
The availability of business profiles will surely encourage companies to create Instagram accounts and thus, the problem of username squatting may crop up.
A practice widely developed on social networks consists in a fraudulent registration and use in bad faith of someone else’s username. The identity thief can replace a surname (often that of a celebrity), a trademark or copyright, or even a business or corporate name.
The major concern in respect of this practice is the absence of a uniform procedure of dispute resolution. Conflicts are currently settled by the legal departments of the relevant social media networks and it is up to them to assess whether or not there has been a case of username squatting. The decisions are not usually substantiated and therefore there is no case law on this matter. In cases of impersonation, the social media networks simply transfer or cancel the disputed username by giving it back to the rightful owner.
What are the remedies to this fraudulent practice?
One should consider whether usernames can benefit from the same regime of protection as domain names. Indeed, username squatting is applicable to social media networks while the term cybersquatting, is used in reference to domain names. But case law is still silent on this matter, and the UDRP procedure is not applicable to cases of impersonation of usernames. Indeed, it is applicable only to disputes between domain names given by a registrar and a registered trademark.
Twitter however, has a rather distinctive policy regarding this practice. Twitter prohibits username squatting in its Rules but highlights that “if an account was not updated, has no profile image, and has no intent to mislead others, it typically means there is no name-squatting or impersonation”.
Squatting will therefore only be identified in cases of ongoing violation of a registered trademark. The trademark must indicate the account and the username will then be transferred or deleted.
If a trademark detects that a false account has been registered without its knowledge, it can also notify the web-host provider, so as to compel it “to take prompt action to withdraw the illegal information or make it impossible to access”, according to Article 6-I-2 of the French law on confidence in the digital economy.
This notice may have serious consequences, as evidenced by the ruling of the Paris Court of Appeal of December 2, 2014, which severely condemned DailyMotion based on the French law on confidence in the digital economy. The web host provider indeed failed to comply with its obligation to remove promptly the disputed videos of shows broadcasted on the French TV channel TF1, and which were made available unlawfully online.
It is important to note that for the use of a trademark in a username to be reprehensible, it should have taken place in “the course of business”, that is, it must be able to derive business profits or else one cannot establish that there has been counterfeit. A notification to the host provider on the basis of the French Law on Confidence in the Digital Economy will not be valid if the impersonation was only criticising the trademark. In this case, the company’s complaint must be substantiated on the grounds of intent to infringe the freedom of expression, or of unfair competition, by stating, for example, defamation.
The “first come, first served” rule defines reasonably well the registration policy of usernames on social media networks. As there is no uniform dispute resolution policy, companies have to be present on social networks by keeping the username related to their trademarks and by opening the relevant account so as not to be victims of username squatting.
IPzen monitors and protects your intellectual property rights on the Internet.
By subscribing to one the numerous services of protection of IP rights offered by IPzen, you will be able to protect your intellectual property rights. As soon as IPzen identifies a user impersonating your rights, the results will automatically be sent to you. IPzen Enforcement is especially designed to transfer or cancel a domain name which impersonates your rights. IPzen will seek to have any content which could jeopardise your business removed and will assist you in the settlement of your dispute.
With IPzen, you can also detect and notify legal services of social media networks of any impersonation of usernames. You will thus enjoy a 24/7 surveillance of Facebook, Twitter, MySpace, Instagram, YouTube, Dailymotion, LinkedIn, Viadeo, and many other networks, in order to counteract cyberquatting and username squatting.