Trademark

by Mike Masnick


Filed Under:
api, opposition, shutdown, trademark, twitpic

Companies:
twitpic, twitter



Disappointing That Twitter Threatened Twitpic, But Story Doesn't Add Up

from the you-don't-need-a-registered-trademark dept

A few days ago, Twitpic, which was the original third party service for hosting images for your tweets, announced that it was shutting down "unexpectedly" because Twitter was threatening to pull its API access if the company didn't drop its trademark application for Twitpic -- an application that had been pending since 2009. Considering that Twitpic was one of the earliest of many third party services built on top of Twitter that helped make Twitter so valuable in the early days, it's certainly disappointing to see it go. It's also something of a legacy reminder that Twitter has been slowly, but surely, destroying all such third party services that helped make it so popular. That's disappointing, if not all that surprising. Platforms all too frequently end up swallowing those who rely too strongly upon them -- and, these days, to be honest, there's little reason to use Twitpic instead of Twitter's own image hosting (or some other options as well).

It's even more disappointing that this is all happening over a trademark dispute. Back in 2009, in fact, we highlighted Twitpic as one example (of a few) of how Twitter seemed to take a very open attitude towards its trademarks and let the various companies building on its platform make use of different forms of "twitter" and "tweet." A year later, the company was even more explicit in offering "free" licenses for its trademark for third party services. That's pretty clearly changed these days, and building Twitter as a more closed system where all of the innovation has to come from within, rather than from third parties, is unfortunate (and potentially quite limiting for the future).

All that said... I'm really not sure I buy this excuse for why Twitpic is shutting down:
We originally filed for our trademark in 2009 and our first use in commerce dates back to February 2008 when we launched. We encountered several hurdles and difficulties in getting our trademark approved even though our first use in commerce predated other applications, but we worked through each challenge and in fact had just recently finished the last one. During the “published for opposition” phase of the trademark is when Twitter reached out to our counsel and implied we could be denied access to their API if we did not give up our mark.

Unfortunately we do not have the resources to fend off a large company like Twitter to maintain our mark which we believe whole heartedly is rightfully ours. Therefore, we have decided to shut down Twitpic.
But... that makes no sense at all. Twitpic does not need a registered trademark in order to stay in business. It has no need to fight Twitter on this, and if its concern is the legal fees, why not just drop the whole trademark application. Registered trademarks have some uses, but common law trademarks are nearly as powerful for most important cases. Twitpic could easily just drop the trademark application process (saving legal fees there as well) and stay in business. The idea that you need a registered trademark makes no sense. The idea that you'd shut down the entire business just because Twitter opposed the trademark also makes no sense. It sounds much more like this was a convenient excuse for Twitpic to shut down while "blaming" Twitter for something, but without pointing out that the real problem might have been back when Twitter built in its own photo hosting service.

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  • identicon
    Anonymous Anonymous Coward, 5 Sep 2014 @ 6:34pm

    Something IP Intensive Companies Fail To Understand

    synergy

    The interaction or cooperation of two or more organizations, substances, or other agents to produce a combined effect greater than the sum of their separate effects:

    'the synergy between artist and record company'


    Too bad, when two plus two could equal five or more.

    reply to this | link to this | view in chronology ]

  • icon
    Whatever (profile), 5 Sep 2014 @ 7:25pm

    Twitter allowed Twitpic to work as long as they didn't want to appear greedy for the page views. However, over time, Twitter realized that image views were a huge part of the page view pie, one that could actually be used to monetize with mobile, and thus they created their own image handling system.

    Twitpic is basically a service that isn't really needed anymore. As social media sites move to maximize their monetization, it's pretty clear what happens. Synergy is for growth, it's not for revenue maximization.

    Remember too: Social media is very trendy. Going public for companies like this means that it's time to make the most money possible while there is money to make. You don't do that by giving away a big percentage of your business to someone else.

    IMHO, Twitpic was already in trouble, and they are using this as an excuse to bow out gracefully.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Sep 2014 @ 8:47pm

    You really don't see Darth Vader standing right there?

    "I am altering the deal. Pray I don't alter it any further."

    Twitpic is basically a service that isn't really needed by Twitter anymore.

    Fixed that for ya.

    reply to this | link to this | view in chronology ]

  • icon
    justok (profile), 5 Sep 2014 @ 10:39pm

    Well, I hope all legal arguments in this case will be presented in 140 characters or less

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 5 Sep 2014 @ 11:26pm

    I wonder if once they manage to secure the mark they will suddenly appear like a good place to invest because they have a name and IP.

    Haven't we seen billions poured into much less as long as there was secured IP?

    reply to this | link to this | view in chronology ]

  • icon
    Marc John Randazza (profile), 6 Sep 2014 @ 6:29am

    A possible explanation...

    Just speculation, but....

    The dispute between Twitter and Twitpic is at the TTAB. A TTAB proceeding is a limited proceeding over a trademark registration. Therefore, the issues are limited, making the costs also a bit more limited than full blown litigation.

    Nevertheless, during TTAB disputes, the parties will sometimes also at least discuss or mediate other potential disputes. Think of the TTAB proceeding as a low-risk place to have a skirmish, but sometimes you let that skirmish inform your decisions about how you'll handle other possible disputes.

    So, Twitpic may not be shutting down over the trademark issue - but the trademark fight is where the other issues got negotiated to this point.

    reply to this | link to this | view in chronology ]

  • icon
    victorvscn (profile), 6 Sep 2014 @ 8:34am

    Thanks for not being a complete moron. I was really surprised that no other website reported this! I feel bad for every company that goes bad. It's sad to see a dream destroyed. But good god, that was an awful excuse on which no other blog I read picked up!

    reply to this | link to this | view in chronology ]

  • icon
    Entrepreneurman (profile), 6 Sep 2014 @ 12:08pm

    RE: "Twitpic does not need a registered trademark in order to stay in business. It has no need to fight Twitter on this, and if its concern is the legal fees, why not just drop the whole trademark application. Registered trademarks have some uses, but common law trademarks are nearly as powerful for most important cases."

    Good points Mark, but possibly oversimplified. I agree that Twitpic's explanation is lacking. But Twitpic dropping its trademark application may not end this dispute. Since Twitter is fighting Twitpic's federal trademark application, Twitter is also probably against Twitpic's common law trademark rights/claims. As a result, Twitter could be threatening to file a trademark infringement lawsuit against Twitpic that seeks profits, damages and atty's fees. Such a legal battle could drag on for years, and would be hugely expensive and very risky for Twitpic, and could easily put Twitpic in a bet the farm position. So since it sounds like Twitpic's business is already headed south anyway, Twitpic may have decided screw all that legal crap, let's just close up shop now and move on.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Sep 2014 @ 12:24am

      Re:

      Of course Twitpic could always rebrand to something Twitter couldn't object to. It's not the first company to do it, and do it successfully.

      But yes, I'm guessing it's more of an excuse to shut down before it goes under.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Sep 2014 @ 9:18am

    One reason to avoid Twitter's built-in service is that they appear to be blocking the posting of certain comic strips. I like to take a comic, make a comment on it, and post it. I believe this is fair use as it's not the entire archive, there is commentary, the copyright embedded on the comic is retained, and it is infrequent. But I've had to either change the filename of the comic or use TwitPic to get it posted.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Sep 2014 @ 12:35pm

    yes but twitter has turned into the Ogre now.
    It's started on the path to obscurity by suing anyone/everyone along with censoring who it feels like, when it feels like it..and damn its own internal rules.

    reply to this | link to this | view in chronology ]

  • identicon
    DA, 10 Oct 2014 @ 12:15pm

    Entrepreneurman

    What the heck does this Smith character know about anything?
    Trademark infringement!!?? Possibly, EMI sued him and he got slammed in court.
    He's been appealing for over 15 years and is still using his Bizstarz name like he is actually the CEO of a functioning business.
    Isn't the internet great where a loser can give the impression he's important and knows what he is talking about.
    Wow, what a narcissist.

    reply to this | link to this | view in chronology ]


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