Angry Birds Characters – Need To Be Trademarked?
In Continuing Our Discussion About Angry Birds:
In terms of what Angry Birds could consider to supplement their intellectual property portfolio, I would suggest trademarking the actual Angry Bird characters. Check out the trademarks DC Comics has obtained over the Superman figure (among others, US Registrations 1209743, 0391821 and 1235769). This would give them a more clear trademark infringement case should more “similar” products start appearing on the market. One other thing we have found useful in protecting three-dimensional images is design patents. For example, we have obtained design patents on everything from surfboard shapes (D527,781) to dolls (D567,306), from flashlight holders (D542,632) to Rattlesnake coffee mugs (D627,605).
The lawsuit provides some interesting claims made by Rovio — they state that by June of 2011 there had been 250 million downloads of Angry Birds – and some scary claims: “Players log more than 1 million hours of game time each day on the iOS version of the game”. A million hours a day? Disregarding legal issues, people spend a million hours a day playing Angry Birds? That’s over 114 years of “human time” spent every day playing this game. Quite impressive and equally scary.
In the interests of full disclosure, both my son and I have Angry Birds on our iPads and he stomps me at high scores on a regular basis. We also own several Angry Birds (the real ones), and I prefer the black one while my son prefers the red one when we play “Angry Birds and Pigs”.
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Angry Birds Still Not Smiling
The last time we visited with Angry Birds and Rovio, the Finnish company behind this sensation, an Angry Bird theme park had just opened in China, without permission from Rovio to use their Angry Birds intellectual property. The theme park laughed it off, sort of like the Black Knight in Monty Python and the Holy Grail referring to his “mere flesh wound”. Anyway, since then Angry Birds theme parks have sprouted up, presumably with Rovio’s blessing, in Finland, and soon there will be a second Angry Birds theme park in England. (My son and I are lobbying for one in Carlsbad, but since we already have LegoLand here, I believe that the marketing term “saturation” would be foremost in Rovio’s mind if they were to consider an Angry Bird Land in Carlsbad.)
So, have all the green pigs been knocked out of Rovio’s life?
It appears not. Rovio recently filed a lawsuit against Ideal Toys alleging, among other causes of action, that Ideal Toys infringed Rovio’s copyright on several of the characters in Angry Birds. A second cause of action involves a Lanham Act (15 USC 1125(a)) issue of whether Ideal Toys made their toys so similar to the Angry Birds as to “cause confusion, mistake or deception” – basically, they claim that the two designs are so similar that a consumer might buy and Ideal Toy product thinking it was an Angry Bird.
We did a side by side comparison of an Ideal Toy and an Angry Birds product for sale on eBay.
Take a look bit.ly/MBjRyR and bit.ly/KHunqL As you can see, there are some real similarities between the two and there are some obvious differences. The head feathers of the Ideal Toy are black and oriented vertically down the bird’s back, while the head feathers of the Angry Bird are red in color and oriented horizontally across its head. The eyes are also different, with the Angry Bird eyes being angry and the Ideal Toy eyes looking more like those Japanese anime characters whose eyes take up half of their face; there is nothing “angry” about the Ideal Toys eyes.
Will a consumer be confused?
Well, I wouldn’t be, but I’m supposed to know about these things. So, I turned to a more average user of this product, my 5-year old son Martin. I showed Martin these two pictures at different times, and asked him what it was. “Angry Bird” was the response both times. When I showed him both pictures and asked him which one was THE Angry Bird, he correctly selected the Angry Bird. I then pointed to the Ideal Toy and asked him what it was. He called it “Beak Bird”, so apparently the bird’s beak was the most prominent feature so long as he knew it wasn’t an Angry Bird.
So, should this case get to trial, I can only imagine the scene if both sides call a bunch of 5-year olds as witnesses to prove that consumers are or are not confused. Could be a real made-for-dumb-people-who-watch-TV-way-too-much show. We have reality TV shows on every other useless topic, and at least this one would have some redeeming educational value (and hopefully none of the 5-year olds would end up in rehab every week).
To Be Continued…
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Lady Gaga Unlikely To Be Next Director Of USPTO
So, you ask, what does Lady Gaga have to do with intellectual property? Well, during her recent visit to Thailand to perform at a concert, Lady Gaga tweeted “I just landed in Bangkok baby! I wanna get lost in a lady market and buy fake Rolex.” Apparently the Thai Intellectual Property Office was not amused and many in the country have taken great offense to her comments.
Now, even Angry Birds seems to understand that a trademark protects a brand name, and in countries where trademark law is not enforced, buyers can be confused over which brand of goods they are buying if two goods have the same, or similar brand names. However, Gaga’s remarks have struck several chords with this frequent flyer of foreign lands.
Lady Gaga, you seem to think that there are counterfeit treasure troves like the Hong Kong Ladies Market in other countries.
Trust me, for 15 years I’ve been scouring places like this looking for companies that infringe my client’s patents and trademarks, and I can assure you that the best counterfeit market is in Hong Kong, and, since you seem uncertain which one you are tweeting about, I’ll even give you directions to it. Take the Kowloon MTR (red line) to Mong Kok station, exit at E-2, walk up the stairs, go straight past the people trying to shove massage parlor advertising garbage at you, dodge the people selling shady-at-best lottery tickets, walk around the policemen who are clearly not there to enforce trademark law, cross Sai Yeung Choi Street, walk one block and there it is, in all its splendor: Tung Choi Street and the home of the (in)famous Ladies Market. Here you can find all kinds of fake hand bags, fake wallets, fake pens, and, of course, a fine variety of fake Rolex watches. You will also, on occasion, find patent attorneys dressed like fake tourists, with their cameras eagerly taking pictures of boxes of their client’s products and occasionally buying some samples for later use in court.
Our work in Hong Kong is on several levels.
First, for our clients with intellectual property protection in Hong Kong (which is a special economic zone of China with some of its own laws), we look for products that directly violate our clients’ IP. Second, many of our North American and European clients have exclusive manufacturing deals with Chinese factories, so if we happen to see some of our client’s products on the streets of Hong Kong, it could signify a front-door or back-door problem with the manufacturer. Back-door theft occurs when employees smuggle out products, then sell them on the side in the knock-off markets. You can usually spot back-door theft when you see your client’s products for sale as individual units – sometimes in your client’s packaging; sometimes in Zip-loc® bags. Front-door theft is when the factory management is crooked and they are selling entire boxes of your client’s products on the black market. You can usually spot this when you see entire inner or outer cartons of your client’s product in your client’s boxes for sale in a stand. In either case, the client is usually at least a little bit perturbed at the factory and would like to know whether there was some misunderstanding about words like “exclusive” and “non-compete”.
Back to advising Lady Gaga on where to find the best knock-offs, there are other markets in Hong Kong that offer a solid range of counterfeits and I can make a list for you Lady Gaga – namely the Jardine Street Market and – particularly for electrical goods – Golden Shopping Centre – but none can truly compete with the cesspool of copy products found in the Ladies Market. Almost as impressive as the variety of counterfeit products are the stories the vendors will tell you. Next time she is there she really should stop and chat with the vendors. Ask them if it is a fake Rolex? Many times they will say it is a “factory second’. Oh, I didn’t know Rolex made factory seconds. Where is the factory that makes factory seconds? China? I thought all Rolex’s were made in Switzerland. Oh, a special factory just for your booth? Wow, you must be special! See, you can have some fun at the Ladies Market.
However, I am sure Lady Gaga won’t find anything comparable to the Ladies Market in Thailand. The Thai government is more active in IP enforcement, so you have to travel outside the city to the “night markets” to find comparable counterfeit goods. And these are truly fly-by-night operations, with tents set up every evening on different patches of dirt around rural Thailand. Despite at least a few efforts by our firm, we have yet to find anything of infringing interest at the night markets, so Lady Gaga might be disappointed.
In all fairness to Lady Gaga, however, Thailand does have its share of scams. For example, there is the “gem scam”, the “this temple is closed but just take this taxi to another temple and stop by a tailor on the way scam”, and the “we have fresh shrimp today and we sell it by the gram, not kilogram, and we give you the bill after you eat scam”. She undoubtedly has enough money to not worry about the expensive shrimp, but perhaps she would like some fake gems? So, bloggers of Thailand, don’t get to self-righteous about Lady Gaga’s comment. People in glass houses shouldn’t throw Angry Birds at anything other than Green Pigs or something like that.
All that being said, we still love your music Lady Gaga.
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