I've always felt it was a shitty policy, it has been exploited countless, even more so in time sensitive situations. But that is the requirement as it stands now and no company is going to challenge it as a failure in attempt is far more harmful to them, than taking down someone else problematic content.
> The DMCA safe harbor provisions only apply to claims of copyright infringement. Therefore, they do not provide any protection against trademark claims, whether for trademark infringement, trademark dilution, or cybersquatting.
If the FTC has the authority I’d love to see them bring the hammer down on big tech for stuff like this. A $100 million fine for destroying someone’s small business would be fine by me.
But yes, I think the Dmca system is flawed greatly without a serious punishment for those who abuse it.
This smells similar to the Fortnite / Apple dustup, and the end result of that wasn't that Apple was forced to re-list Fortnite in their App Store; it was that [edit: my mistake; misremembered] Apple was barred from retaliating against Epic but the only way to play Fortnite (legally) on Apple hardware now is through Microsoft's cloud service.
I don't know what legal precedent would force Google to list an app in their (obviously large and market-dominant) private store that they wholly own.
This is why a lot of apps have migrated to a "for IG", "for G", "for WA" in the name, which have less boost but still in the grey area.
I guess your can make a profit by creating a new account, create a useless app with ads, publish with one of these names, wait until it is rejected, then claim the revenue.
The real issue is that you're not talking to Instagram or people who represent Instagram's interests; you're talking to Google which is looking after Google's interests by being excessively cautious in favour of takedowns to avoid expensive lawsuits and/or additional legislation, and you're talking to some external "brand protection" agency whose interest it is to take down as much as it can to justify its fee.
And through these intermediaries neither of whom actually have a stake in the matter, both parties who do have a stake (Instagram and the app developer) both suffer.
And don't forget, if you are a business in EU, you can ask for mediation: https://support.google.com/merchants/answer/9969397?hl=en
* Even if the complaint is patently false, precedent shows that the court decides on that matter. Even after Lenz vs Universal, it only asks for complainants to consider if the use is legal, it didn't really create safeguards that the OSPs can use to disregard a DMCA request.
As if they needed one. They can do it with no reason at all. That's the nature of walled gardens.
That's a large ecosystem of hardware to deny oneself access to these days. It'd be like not writing apps for the IBM PC in the '80s because you don't trust IBM's business practices.
The shitty copyright troll who filed the DMCA takedown is the real bad guy in this story.
It's their store and their rules; there's no contract law overriding that basic premise that I'm aware of. "We let ourselves be lied to and are disinclined to correct our error" is exactly as valid a legal reason as others because Google is the sole arbiter of the enforcement of their own store TOS.
Perhaps this should be changed, but there isn't really much legal groundwork on what that change would look like.
> Avoid representing the Instagram brand in a way that:
> 1. Implies partnership, sponsorship or endorsement.
> 2. Makes the Instagram brand the most distinctive or prominent feature.
Pretty clearly seems to do #2... Kind of does #1. The Instagram assets are meant for pointing to Instagram, not ripping off for your own branding as well...
> If you offer an app, website or a product or service that uses the Instagram APIs or is otherwise compatible with or related to Instagram, you may only use Instagram to say that your app is "for Instagram" or that the name of your campaign is "on Instagram" in a descriptive manner.
If the name of the app is "InPlan - Planner for Instagram" and the "for Instagram" is dictated by the Instagram rules, how exactly would you propose they modify that? If you want to dispute the logo, look at the changed logo they used. It does not infringe the Instagram logo at all.
Read the rules in their entirety. Simply calling the app "X for Instagram" doesn't absolve them for the other rules they obviously broke...
Like using a gradient and rounded rectangles together while calling it "InPlan" is so blatantly trying to associate their brand with Instagram's it's hilarious they think it's ok simply because they added "for Instagram" at the end.
Edit - their new logo is so derivative it's still a blatant ripoff, all they did was tone down the yellow and purple lol...
Anyway, OP's argument doesn't resonate with me. The app store isn't a common carrier. Google doesn't need "valid legal reasons" to reject an app other than what is stated in their own terms. And just because Meta says it's okay to use "for Instagram" doesn't mean that Google is compelled to accept that reasoning. Thousands of different trademarked companies use Google Play. Does OP think Google going to have a different individualized policy for each company?
Here's what Google responded to OP, in part:
> The app also infringes Instagram’s rights in the registered INSTAGRAM mark by using “for Instagram” in the app branding without any other branding that is distinctive to the app. Such use is likely to create confusion by implying an association or other relationship with, or authorization by, Instagram when no such relationship or authorization exists.
The name of the app is
InPlan - Planner for Instagram
To me, that very much sounds like it's an app named InPlan put out by Instagram itself, and could be confusing. I agree with Google rejecting this title. Maybe if it was "InPlan - Unofficial Planner for Instagram" or "InPlan Planner (for use with Instagram)"
Plus, I question OP's interpretation of Instagram's policy. They quote Instagram's policy as stating:
"In a descriptive manner" to me implies that "for Instagram" may be used in the description of the app, not the title of the app. I'm no lawyer, if the trademark attorney says it's okay, then it probably is, from a trademark perspective. But maybe not from the perspective of Google wanting the Play Store to clearly differentiate first-class brands from third party applications.
As far as I can see he didn’t retain a lawyer. He just had a consultation at best. That’s essentially meaningless. If you’ve ever worked with lawyers before, a consultation just gives you an overview of how the law works in the area you need help.
Unless you actually hire a lawyer, they aren’t going to look at the details of the case, and are just going to offer opinions on what you tell them.
Nothing was “confirmed by a lawyer” in any meaningful way.
You seem to be confused about who you are replying to.
I know it sucks, but I understand that decision completely. The DMCA was specifically created to safeguard web sites against copyright claims against content posted by users. If Google ignores a DMCA takedown, they become a party in a copyright infringement claim that’s, so far, is purely a case between Instagram (via the company they hired) and you.
“DMCA Title II, the Online Copyright Infringement Liability Limitation Act ("OCILLA"), creates a safe harbor for online service providers (OSPs, including ISPs) against copyright infringement liability, provided they meet specific requirements. OSPs must adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to alleged infringing material (or remove such material from their systems) when they receive notification of an infringement claim from a copyright holder or the copyright holder's agent (a "notice and takedown" process). OCILLA also includes a counternotification provision that offers OSPs a safe harbor from liability to their users when users claim that the material in question is not, in fact, infringing.”
Google has a legal requirement to forward the DMCA claim. The recipient is allowed to counter claim at which point Google has done their job and is no longer liable, it goes to the courts.
This is Google choosing to execute a takedown, which funny enough does expose them to some risk.
Google does have a legal requirement to comply in good faith to DMCA and copyright claims.
It is really simple from a legal standpoint for google, which path to take. what "risk" are they exposing themselves too by not allowing this app again?
DMCA Counter Claim
This system like in most cases is stacked against the little guy, he has an avenue but it's a long and possibly costly one.
By executing a takedown, Google is not acting under the DMCA. They are executing a takedown of an app that may or may not be infringing. They can absolutely be sued or taken to arbitration (ToS withstanding) with no DMCA protection.