TikTok, the Chinese-owned mobile application with over 800 million active users, exploded in popularity during quarantine. Providing a space for users to upload short videos, TikTok filled a space previously occupied by apps like Vine. The platform lends itself to short and quick media uploads, and the majority of TikTok users are members of Generation Z. However, rumors of TikTok mining user data surrounded the platform since its launch. This culminated in the executive branch of the US government effectively banning TikTok through an executive order signed last week. Enter Reels, the Facebook-owned app seeking to compete with TikTok.
Over 2.6 billion active users visit Facebook each month, and over 1 billion users visiting Facebook-owned Instagram as well. Since its inception, Facebook’s popularity increased year-over-year, making it arguably the biggest brand in the world. While competitors pop up every now and then with new innovation, Facebook always seems to find a way to prevail and improve its user base. I guess it was only a matter of time before Facebook introduced a feature to compete with TikTok; coincidentally, Facebook decided to roll out Reels in the US last week. Two intellectual property issues surrounding Reels are particularly interesting, outlined below.
Does Reels Represent Copyright Infringement?
Facebook doesn’t shy away from the fact that Reels is similar to TikTok, while emphasizing that the apps include differences. In a recent interview with The Verge, Robby Stein, product director of Instagram, stated “[a]t the end of the day, no two products are exactly alike, and ours are not either.” Facebook recognizes the danger in releasing a copycat app (as TikTok’s CEO branded Reels), attempting to get out in front of any possible copyright infringement claims. A mobile application represents an expression of an idea, and so long as Facebook did not steal TikTok’s code, Facebook shouldn’t be too worried. Moreover, TikTok likely lacks the sympathy of a US court at this point, so a copyright infringement case is unlikely.
Is Facebook’s Reels Name a Registered Trademark?
However, a more worrying issue for Facebook is that its trademark application for Reels has yet to be examined by the Trademark Office. Even worse, a third party, Hubbard Broadcasting, filed a letter of protest against the Reels trademark application. Hubbard’s letter of protest cites a likelihood of confusion between Facebook’s app name and five trademark registration for REELZ. By filing the letter of protest, Hubbard put itself on the front foot against Facebook. Now, the examining attorney for the Facebook application has a roadmap for a possible likelihood of confusion refusal. Facebook must wait to see if its Reels app receives trademark protection, but competing with TikTok will be that much harder without a registration.