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Flappy Bird Trademark issue
Started by rmbsoft Mar 11 2014 01:54 PM

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14 replies to this topic
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#1

rmbsoft

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Just got this Email from Apple about my Flappy Bird spinoff game called Flappy Wings World:

 

Anybody else got this? Should I take this serious?

 

 

On 2/25/2014, we received a notice from Ultimate Arcade, Inc. that Ultimate Arcade, Inc. believes the app listed below infringes their intellectual property rights. In particular, Ultimate Arcade, Inc. believes you are infringing their trademark. Please see their comments below. 

FF. Developer: Robert de Boer
Provider: Robert de Boer
App Title: Flappy Wings World
Apple ID: 819692932
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You can reach Ultimate Arcade, Inc. through Marcee Lundeen (email: marcee@lpats.com), copied on this email.

We look forward to receiving written assurance that your application does not infringe Ultimate Arcade, Inc.'s rights, or that the parties are taking steps to promptly resolve the matter.  Please keep us apprised of your progress.

Should you choose to remove your application, (for example, while you make any necessary changes) use the steps provided below. 

Visit iTunes Connect at http://itunesconnect.apple.com

1) Access your app in the Manage Your Applications module.
2) Click on the "Rights and Pricing" button from the App Summary Page. 
3) Click on the "Deselect All" button to uncheck all App Store territories.
4) Click on the "Save Changes" button.

We look forward to receiving confirmation that the matter has been resolved.

Thank you for your immediate attention.

Sincerely,

Young

 

 

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#2

ksan

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This probably means someone other than the original Flappy Bird developer either went ahead and TM'ed the name or original developer sold the TM to this company called Ultimate Arcade. Very interesting. Thanks for sharing. 

 

Edit : Here's more I found on this. 

 

http://ipadhelp.com/news/flappy-bird-trademark-on-the-way-seven-patent-filings-suggest-ownership-could-come-soon/



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#3

rmbsoft

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I'm not sure if this is about the name Flappy or the game concept...

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#4

Rob Miracle

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DISCLAIMER: Corona Labs cannot offer answers to legal questions like this.  If community members (or staff members) respond to this, they are doing so based on their own knowledge and advice.  They are personal opinions and do not represent Corona Labs.



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#5

Alex@PaNc

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FYI this is kinda blowing up on Twitter. Seems like whoever this is, is just blanket C&D'ing every single dev with a game that might resemble Flappy Bird. Seems frivolous to me, but I'm not a lawyer. I just play one on TV.



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#6

srr313

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I find that this trademark dispute is totally absurd:

 

First, they don't appear to actually have the trademark which they allege. According to the trademark office, it still hasn't been reviewed - as they only filed in mid february (at the peak of flappy bird) asserting that they own the rights based on some really badly done flash game (even by flash game standards) called "flappy," featuring a sickly looking bird with a different play style from "flappy bird" (other than being an "infinite runner" style game) where your objective is to pop balloons, which they supposedly released in 2006.

 

Second, there are several other patents pending (which are also likely questionable claims) asserting the same ownership.

http://trademarks.justia.com/search?cx=001017683474852908061%3Aoct7h3tcday&q=flappy

 

Third, their site hosts numerous flash games that violate legitimate trademarks of well-established brands and characters - directly (as in the case of Super Mario Racing) and indirectly (pigs and birds from angry birds), among others. Perhaps they should be reported to these trademark owners.

 

However, I believe they could pursue litigation, regardless of whether or not they have a legitimate claim, if they choose. I'm not convinced it's worth it it for them, considering there are so many "violators" (most of whom are generating very little revenue due to the glut of flappy clones), and the alleged damages to their own "flappy" game is likely very small (who knew their game existed/played it before this dispute!?). The Flappy bird phenomena probably drove an increase in traffic/revenue to their site, with people looking to play "Flappy Bird", instead of the POS "flappy" game they ultimately found.

 

As a matter of principal, I want to tell these guys to screw off for abusing trademarks.



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#7

J. A. Whye

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I used the contact form on their web site to let them know what I thought of them.

 

http://www.ultimatearcadeinc.com/index.php?option=com_rsform&view=rsform&formId=2&Itemid=113

 

If they had trademarked the word Flappy earlier, I wouldn't have a problem with it. But to wait until some OTHER games makes the word profitable and then file for a trademark? Scum.

 

 Jay



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#8

BeyondtheTech

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Wouldn't the mention of "prior art" be justified with all the previous clones (not to mention the original) that hit the market?



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#9

srr313

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They claim their ownership goes back to 2006, before the flappy bird games. However, I wouldn't be surprised if you were able to dig up other games, released pre-2006, as prior art (again, most of their games are direct clones with notable ip characters and mechanics).

 

Assuming they did have a valid claim on the flappy bird games, their claim, 8 years after the inception of their "flappy" game, may possibly be a forfeiture (i.e., abandonment) of the trademark rights, as described here:

 

http://www.lexology.com/library/detail.aspx?g=f771aad7-b916-4dcd-94b4-94ea4eddd8fb.

 

As far as I can tell, they released their game 8 years ago without any real success, forgot about it (i.e. left it to die without further updates, any marketing expenditures, etc.) yet it exist indefinitely on the internet. I wonder whether that's sufficient for trademark purposes. 



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#10

amoreno

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Dear all.

 

We have the same problem, we received the letter for our app Flappy Devil. This is ridiculous. We made our app afterwork in a week as an exercise between friends, and now we receive this letter from this "man" telling us this story. I´m not going to remove our app, because this situation is stupid.

 

Do you think they have the trademark? or only they had it in a past? How can a company have a trademarked word?

 

I´ll try to keep you posted.

 

Regards



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#11

beckslash

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Not sure about the words "flappy" and "bird", but you can't trademark a gameplay style or a game mechanics.

 

If you copy the exact functionality and call your game "Meatballs Jump" there's nothing they can do about it. They can send c&ds. Everyone can send that, but that doesn't mean they have any value or that they could actually sue you.

 

They also don't have the treademark yet, so there's nothing to infringe.

 

"Not using the trademark for an uninterrupted 5-year period implies
that the trademark is no longer capable to fulfil the commercial
function of the trademark. By the not use, the trademark does not allow
the consumers to easily and quickly chose a verified product, which
earned a reputation, the competition function being no longer achieved."

 

Not sure if the period is the same in US (it's 5 years in my country), but still the principle applies. But the above doesn't apply to their situation because they DO NOT have a trademark, and probably won't since their product still didn't fulfill commercial function of the name.

 

Maybe someone knows more about the time limitation after you release the product and can still register a trademark for it.



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#12

jjstecchino

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This guy obviously is abusing trademark law. Since his company is making squat with pitiful clones, he is trying to game the legal system and make some money either through frivolous lawsuits, or if he is able to intimidate enough developers who will drop from the apple store, by selling a very profitable brand name. I am not sure if the USPTO will ever approve a trademark based on a single common word, but they may.

I believe it would be in the interest of all involved developers who have a "flappy" app to go ahead and file either an OPPOSITION or a CANCELLATION request with the patent office, explaining what has been said in this forum i.e their game was dead and largely unknown and that they trademarked the word flappy only after another game which they did nor market or develop brought it to notoriety. Also an important point to make is that many companies have been using the term flappy in their business prior to this person trademark application and that it is not fair to give somebody the exclusive right over a fairly common word (at least when it pertains to flying objects). Could you imagine if I could trademark the word RED or BLUE and prevent anybody from using it?

 

The other question is: Does an application for trademark give you the right to that trademark? In other words does this person has the right to the word flappy before the patents office rule in his favor?



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#13

teresalinus

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To go through all the rules and regulations of patent and trademark law is a better idea.Patent law is revising in accordance with time.Also to grant trademark to someone is not an easy task because that is the single branding symbol for your long run business.You need to be very careful while selecting a trademark for your business. Read this one



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#14

info9664

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Here is another notice that we recieved from them after questioning the validity of the claim (posted below). Unfortunately we do not have the resources to take this to court here in the US, which is where Ultimate Arcade and their attorney Marcee Lundeen are located. We also do not want to risk putting our account in bad standing with Apple so we have agreed to disagree and "remove the app from sale while we investigate the validity of the claim further". It would be great to hear if any others have had success with a response that has allowed them to keep their app in the app store with out being sued or having their developer account shut down by Apple. Our game was not getting that many downloads (around 300 a day) so it's not a huge concern financially on our end. Just very frustrating when someone like this comes in and tries to bully everyone else.

 

 

Our client, Ultimate Arcade, Inc. (UAI) has used the FLAPPY mark for more than 8 years in connection with its own computer game.  As you can appreciate, UAI has invested substantial time, money and effort to establish recognition of their distinctive trademark, FLAPPY™.  As such, our client has established considerable good will in the mark FLAPPY™ for its game, which it is now being forced to protect.   We are not concerned with the content of your game, -----.  Our concern lies only in the use of the FLAPPY mark in connection with your game title and perhaps metadata, description and keywords.

              The issue is whether your recent variation on the FLAPPY mark in the App Store or elsewhere might give rise to a likelihood of confusion with UAI’s pre-existing FLAPPY mark that the two products come from or are sponsored by or somehow affiliated with the same source.  In trademark law, the issue of likelihood of confusion typically revolves principally around (1) the similarity or dissimilarity of the marks and (2) the relatedness of the goods.  Our mark FLAPPY™ is wholly contained in your mark ------, and the goods are most certainly related, computer game software; thus, it is very likely that a consumer would think that the two games come from or are licensed by the same entity.  For example, it is likely that a consumer would perceive ------ to  be a version offered by the proprietor of the FLAPPY game.

               Given the timing, you are apparently attempting to capitalize on the infringing FLAPPYBIRD game that was taken down.  It appears this represents a deliberate attempt to create a likelihood of confusion with our FLAPPY™ mark.  Please be advised that the very recent infringement of our FLAPPY mark by FLAPPYBIRD and its clones does not in any way excuse your own infringement our mark.

We hereby demand you remove FLAPPY from the title, keywords, description and all metadata so that the game title does not come up in a search for our client’s FLAPPY game.  Apart from your use of FLAPPY we are not concerned about the remainder of your game content or appearance.

              You are warned that any further use of the FLAPPY trademark will be considered willful and deliberate, and our client will seek enhanced damages and attorney’s fees for any continued infringement of our client’s trademark rights.

              Please let me know if you have any questions.



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#15

nick_sherman

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For 300 downloads a day, you're right, it's not worth standing up to them. But I hope someone with more traction will because it's a completely spurious claim based on an application for a trademark which will probably never be granted, and if it is will take 7-8 months.




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