Polaroid might take down Fujifilm — maybe
I’m not a lawyer, and I don’t play one on TV, either. I’m not able to provide any insight on this topic, I can only bring it up and maybe ask some questions, and speculate a little, which should be taken with a massive grain of salt. I probably know less about legal matters than the average person my age, so keep that in mind—I’m not pretending to be an expert on this whatsoever.
The news yesterday, as reported by PetaPixel, is that Polaroid (that is, PLR IP Holdings, LLC, which owns the rights to the Polaroid brand name, and doing business as Polaroid Originals) has filed a lawsuit against Fujifilm, and a judge has found sufficient evidence to allow the case to move forward. At some point in the coming months—unless the two parties agree on a settlement—this will go to trial.
The complaint is that Fujifilm’s Instax Square instant film is too similar to Polaroid’s classic film, which they trademarked years ago. Essentially, as I understand it, Polaroid’s film is not just film, it’s their logo. Since the white border of the film is highly recognizable, Polaroid registered a trademark for it. So, if a company wants to make instant film, it must look different than a Polaroid print. For example, Instax Mini is divergent enough that Polaroid would have a weak infringement case. Instax Wide isn’t 100% identical to the classic Polaroid frame, but it is very similar, and the judge in this case believes it is similar enough to move forward with the trial.
Fujifilm’s argument is that 1) the border serves a functional purpose (for example, housing the chemistry), and as such cannot be trademark protected (for example, Goodyear cannot trademark a tire just because it’s round and black), and 2) Polaroid had stopped making their film, which could be considered an abandonment of the trademark on the grounds of non-use. I think both of these arguments hold some merit, but are either strong enough to win? I have no idea.
Nearly a decade ago, Polaroid threatened Fujifilm with a lawsuit unless they paid them “millions per year” for their trademark. I’m not sure how much they will be seeking in damages should they win this suit, but I’m reminded of when Polaroid sued Kodak, and won big. Well, it was more that Kodak lost big than Polaroid won, because this lawsuit—how much was spent, and, perhaps more importantly, how much of a distraction it was—has been identified as a contributing factor to Polaroid’s eventual bankruptcy. But Kodak had to pay $925 million dollars to Polaroid (which, at the time, was the largest ever settlement), plus stop production of their Kodamatic instant film line. Oh, and they had to give their Kodamatic customers a refund, too. It was a huge blow to Kodak, and eventually contributed to their bankruptcy, at least a little.
Polaroid took Kodak out, and took themselves out in the process. Of course, that’s a massive—just massive—oversimplification of it all. The lawsuit was only a very, very small factor in both bankruptcies, as there were many other—and much larger—issues at play. A lot of articles have been written about this topic, and even a book (there are a lot of resources available, should you want to learn more). Obviously we’re only briefly touching the very surface here in this article and overgeneralizing, but it should be noted that the Polaroid vs Kodak lawsuit did have an impact on the film industry, probably more than most realize. There was no winner, despite Polaroid’s legal win.
I want to bring this back around to Fujifilm. It is very possible that a judgement could be ruled in Polaroid’s favor, and that Fujifilm will have to pay them millions—tens of millions at least, but quite possible hundreds of millions, if not more—and they’ll have to stop making Instax Wide cameras and film. They’ll probably have to give their customers a refund, too. I mean, if Red Bull had to pay a settlement because you don’t actually grow wings after drinking it, any judgement is possible. If such a ruling were to happen, that would be a massive blow to Fujifilm, which has the potential to ultimately end Fujifilm’s photography business.
Instax is Fujifilm’s big moneymaker. While the X-series and GFX-series have both grown in recent years, Instax is still Fujifilm’s largest camera/photo segment. Losing hundreds of millions in a judgement would be a massive setback, but if they have to stop making Instax Wide, that might be just as big of a blow—a double whammy. This has the potential to be devastating.
I don’t know, nor do I care to speculate, if Fujifilm violated Polaroid’s trademark. Maybe they did, maybe they didn’t—I have no idea, and that’s not for me to decide, anyway. With that said, I hope the judge rules in favor of Fujifilm, or, if not, it is like when the USFL sued the NFL and won, but only got a $1 judgement. The worst-case scenario (from my perspective as a long-time loyal Fujifilm customer) is that Polaroid wins and receives a very large settlement, which becomes a turning point for Fujifilm, eventually leading to a future bankruptcy or a shuttering of the photographic business (which is only a small part of the company overall). It’s like dominoes, where knocking one down can lead to more falling. Obviously, I hope that can be avoided.
It seems more likely than not that Fujifilm will pull through this just fine, even if they lose the case. Instax Mini has a larger market share than Instax Wide, and the digital camera division has been on a roll lately. But, to a small extent that I’m clearly overstating, Polaroid took down Kodak, and they could do the same to Fujifilm, even if it’s seemingly unlikely. This is something to keep an eye on. No court date has been set, and I’m not sure how long we’ll have to wait to find out—the battle between Polaroid and Kodak took 14 years to play out. Oh, and I know it may sound like it, but by no means am I anti-Polaroid. I have Polaroid cameras and film, and even sport a Polaroid t-shirt from time-to-time. I sincerely wish them much success in everything …aside from this lawsuit.
What do you think? Will Fujifilm win? Will Polaroid? What kind of impact will it have if they do? Is this all much ado about nothing? Let me know your thoughts in the comments!
