Twitpic was launched in 2008 and quickly gained popularity as a way for Twitter users to post photos to the microblogging platform. Some of the earliest examples of individuals and citizen journalists using Twitter to distribute photos of breaking news events involved the Twitpic service.
According to Everett, Twitpic filed for a trademark in 2009. "We encountered several hurdles and difficulties in getting our trademark approved even though our first use in commerce predated other applications," he wrote, "but we worked through each challenge and in fact had just recently finished the last one."
Since its launch when Twitter was far from the social media behemoth it is today, Twitpic has remained a prominent member of the Twitter ecosystem. So it was with shock that Twitpic found itself facing an ultimatum delivered by Twitter. According to Everett, "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."
Lacking the resources to do battle with a billion-dollar corporation, Everett made the difficult decision to shut down the Twitpic service on September 25 despite the fact that he "whole heartedly" believes the Twitpic mark is "rightfully ours." Everett says that users will be able to export their photos and videos before the service goes offline.
Questionable tactics and timing?
Many API terms of service have provisions about intellectual property, including trademarks. Twitter's current API terms forbid the misuse of Twitter marks, stating that "Your service should not...use business names and/or logos in a manner that can mislead, confuse, or deceive users."
While the referenced brand guidelines mention the marks "Twitter" and "tweet", which Twitter has registered, the use of the word "twit" is not mentioned. But even if Twitter believes that the name Twitpic does infringe upon its rights, the tactics used against Twitpic, and their timing, do seem questionable.
First, the trademark opposition process would give Twitter and Twitpic the ability to argue their respective cases before the United States Patent and Trademark Office. If Twitter's arguments were found to be legitimate and persuasive, Twitpic would likely be denied a trademark. At that point, the company would likely need to reconsider its branding anyway.
Second, and most disturbing, is the fact that, according to Everett, Twitter waited years to take action. Twitpic has been operating its service under the Twitpic brand since 2008 and its trademark application has been public since 2009. If Twitter genuinely believes that Twitpic is violating its intellectual property rights, why did it wait until 2014 to address the matter?
To be fair to Twitter, as the company's business model came into focus, it made clear to developers that there might not be a place for them in the Twitter ecosystem. But for an established developer like Twitpic, which has been around since Twitter's earliest days and has used by many Twitter users over the years, Twitter's tactics and timing seem unnecessarily swift and harsh.
If there's one key takeaway from this chain of events, it's this: in our brave new API economy, there truly are no guarantees. Significant value can be created and delivered on top of APIs, but developers and end users who rely on third party APIs can't take their access to them for granted.