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).
Hey consumers, are you in danger of being confused? An infringement on Apple Computers, or Not?
A logo infringement case that gets less clear the closer you get to the core of the matter. Not too long ago, Apple Computer accused a Chinese company that produces flour and noodles of infringing Apple’s trademarked “Apple with a bite taken out of it”. The Chinese company, Sichuan Fangguo Food Co., Ltd., thinks that Apple is full of applesauce. The trademark in question is a stylized apple with two Chinese characters in the center, a stem and a leaf, with the lower left quarter removed. Apple is claiming that a red Apple logo it has already trademarked.
Here is a link that shows the two logos: At first glance, Apple’s claim seems ridiculous. Yes, both are red and both represent stylized apples missing a section, but to allege that a consumer would be “confused” over the two logos paints a very dismal picture of the average Chinese consumer. So, Apple should clearly lose, right?
Indeed, the noble Sichuan Fangguo Food company was only two days away from having its trademark approved when Apple started throwing rotten fruit at the application via the Chinese trademark office. The respective shininess of the apples, however, become less clear upon peeling away a few layers. It turns out the Sichuan Fangguo Food had applied to register this logo under 16 different classes – we beyond the flour and noodles it is known for. And, amazingly enough, they filed for protection on products such as “notebook computers” and “electronic game software”. Sounds like a certain company we know of, doesn’t it?
So, I wonder why Sichuan Fangguo Food wants to expand beyond, well, the last word of its name? Fangguo CEO Zhao Yi explained that he wants to expand his brand name into other types of products. Hmm, this apple is not smelling quite as fresh. Apple even offered Zhao the proverbial olive branch and offered to resolve the infringement dispute by having Sichuan Fangguo Food remove the leaf and abandon prosecution of its trademark applications in categories which overlap with Apple Computer. Zhao countered by claiming that if he removed the leaf, his logo will look like a bomb.
Our advice: Go back to making noodles or change your name to Sichuan Fangguo Global Products; as for Apple Computer, you might want to realize that this little company called Apple Records was around well before you were.read more
So, when can you “own” a name through registration of a federal trademark and not be able to stop someone else from using it? Sounds like the exact opposite from why you registered the trademark in the first place, but, as with just about everything in life, there are some exceptions with trademark law.
The two biggest exceptions encompassed under the umbrella of “Fair Use Defenses” as it applies to a trademark are uses that are “descriptive” and “nominative”.
Descriptive use occurs when Company B uses a term, trademarked by Company A, to describe the goods or to designate their place of manufacture. For example, Yakima is a registered trademark of a company that makes car racks; it is also the name of a town in Washington that was put on the map by the skiing Maher twins in the 1970’s and 80’s. So, a car rack company located in San Diego would be infringing Yakima Racks’ trademark on the name Yakima if they called their racks “Yakima car-racks”, but a car rack company actually located in Yakima, Washington could promote the fact that their racks were made in Yakima, WA, but they still couldn’t call the racks “Yakima”.
The second major part of the Fair Use defense to trademark infringement is nominative use, which allows you to use another party’s trademarked name to refer to them. So, if you run a blog, you are not infringing anyone’s trademark if you write a comparison of Yakima and Thule racks, and refer to each rack by its trademarked name, but make sure you do not imply that you are endorsed by either company. Nominative use also includes certain, but not all parodies. So, the FaceBook site “Hello Kitty Sucks” has not, to our knowledge, been sued by the owners of the “Hello Kitty” trademark, as their website is using its parody of Hello Kitty for a mainly non-commercial purpose. On the other hand, the purse brand “Gucci” was able to stop a diaper company from calling their diapers “Gucchi Goo”.read more