Can you own an Instagram handle?

If you have registered an Instagram handle (a username) then your rights to control it depend very much on whether you have a trademark registered for the same words.

A report last week concerned a Reading Football Club fan losing his ‘@sussexroyal’ Instagram handle. The fan, living in Sussex, registered the Instagram account in 2016 to support the club, known as ‘The Royals’. Without reference to him, he discovered this month that it had been reallocated to Prince Harry and Meghan Markle – the Duke and Duchess of Sussex.

How can this be if the original owner had registered it in good faith over 3 years ago?

Instagram’s online policy states that, when seeking to register a new username, if the desired username is already taken, but the account appears to be inactive, then numbers, abbreviations or underscores may be used to achieve a similar version of the username.

But in the sussexroyal example, Instagram simply reallocated the existing user name rather than accepting a slightly amended name for the Duke and Duchess. The owner is aggrieved but, not surprisingly, is unwilling to take on the challenge and potential major costs of any legal proceedings.

Instagram’s Terms of Use state that the platform retains the right to change a username if it is considered ‘appropriate’ or ‘necessary’. No detail is given as to what is meant by either of these terms and neither are given their own definition. So it seems to be left to what could be capricious decisions by administrators within Instagram at Facebook’s European HQ in Dublin to adjudicate these issues.

It’s evident that Instagram’s practices are quite opaque: even if you have claimed a username ahead of all other users (in line with Instagram’s own policy), no ownership rights seem to subsist. The chosen username can be altered or removed entirely at the sole discretion of Instagram.

What if you also have a registered trademark?

Instagram has, as we know, become a key advertising tool for many businesses, and many usernames incorporate a registered trademark.

Similar to the policy employed by other social media sites such as Twitter, Instagram operates a first-come, first-served basis when allocating usernames, even in the case of registered trademarks.

This can lead to registrations being taken by accounts that do not own the mark in question – or indeed have any connection to the relevant business. The Instagram Terms state only that ‘you may not impersonate someone you aren’t, and you can’t create an account for someone else unless you have their express permission’.

The platform also states that ‘If you select a username or similar identifier for your account, we may change it if we believe it is appropriate or necessary (for example, if it infringes someone’s intellectual property or impersonates another user)’.

However, although Instagram retains, it seems, some quite diffuse rights, what rights are there for a trademark owner to force a username change – or indeed seek to have a username reassigned to them?

There is an Instagram process but it is shrouded in uncertainty. For example, if a complaint is made to Instagram, no detail of the decision making process is provided and it is unclear who has authority to make decisions in relation to these disputes.

In short, Instagram appears to distance itself as far as possible from any in-depth legal procedure, stating that it cannot adjudicate upon disputes between third parties.

It is puzzling and disturbing that Instagram has sought to sidestep the very real problems that can arise.  For domain names, there has been, since 1999, a very well-established procedure: the Uniform Domain-Name Dispute-Resolution Policy (“UDRP”). This allows for impartial resolution by an appointed Administrative Panel.  Orders can be made for users to cease using certain domain names and/or require the assignment over to relevant intellectual property rights owners. WIPO has successfully processed over 42,000 of these disputes.

Although this might have been seen to be an obvious model for Instagram to adopt, it has declined to do so As a result, owners of Instagram accounts or indeed concerned IP rights owners are adrift without any reliable dispute resolution within Instagram.

A major issue is that the alleged infringer might not even be identifiable since there is no WHOIS equivalent for Instagram.

Instagram do not acknowledge any right to disclose information as to who might be operating an infringing username. A court order for disclosure could be sought but that might need to be issued in Ireland against Instagram’s owner, Facebook Ireland Ltd – an expensive process.

Once the owner or user of an Instagram account is then identified, a trade mark owner could bring proceedings in the courts for either trade mark infringement or passing off.  But the elegant, quick and inexpensive UDRP procedures are simply not available.

Memery Crystal Comment

Instagram usernames have become valuable assets in their own right. Cristiano Ronaldo for instance has 160m followers for his account. Even the magazine National Geographic has over 100m followers and CNBC reported in 2018 that Kylie Jenner makes US$1m for each of her sponsored posts.

A market therefore for social media sales is necessary and indeed already partly established (Carnival Cruises offered to pay a Snapchat account user a free cruise to hand over the ‘@CarnivalCruise’ user name). However, even this concept seems beyond Instagram with its terms stating that usernames can, under no circumstances, be sold (‘You can’t attempt to buy, sell, or transfer any aspect of your account (including your username) or solicit, collect, or use login credentials or badges of other users.’).

With, now, over 1 billion monthly active users, it is surprising that there is no meaningful and reliable structure governing either sales or disputes over username ownership.

In our view, given the increasing importance of Instagram handles – and the current number of account registrations – it is critical that Instagram now establish an equivalent process to that for domain names to protect what is becoming valuable space in the social media universe.

With astute planning, it would be possible legally to transfer the value in an Instagram account. But still, IP rights owners and Instagram username registrants should be aware that there few protective measures maintained by Instagram; such owners may need to rely on the more cumbersome and expensive court processes available to trade mark owners or ensure, early on, that all relevant usernames are first registered by them.