"Flappy" Trademark Application Filed By California Company - Update

"Flappy" Trademark Application Filed By California Company - Update

Flappy title screen

Ultimate Arcade Inc. filed a trademark application for the word "Flappy" last month and is already sending out notices of infringement to app developers.

Update: A law firm representing Ultimate Arcade Inc. has responded to our inquiries, explaining that the company does in fact have a legitimate claim to the "Flappy" trademark based on its 2006 game of the same name, which is available online and for Android devices.

"If we do not police the marketplace to stop the use of confusingly similar trademarks, UAI stands to lose all of its valuable goodwill associated with its long use and advertising of the 'Flappy' mark," Lundeen & Lundeen, PLLC, explained. "UAI is not complaining about the play or style of the 'Flappy' clones; so far the game code or characters do not appear to have been copied by anyone that we are aware of -- we are only asking developers to respect our trademark rights and remove 'Flappy' and any confusingly similar terms or marks from the names, metadata, keywords and game descriptions to stop the confusion."

"In the U.S., trademark rights are acquired by use OR registration. UAI has had more than 8 years of use of the 'Flappy' mark for computer games, 7 years exclusively before the Flappy Bird game by Dong Nguyen and the explosion of other confusingly similar and/or deliberate knock-offs," it continued. "Our application to federally register the mark 'Flappy' was only recently filed when we became aware of the widespread confusion, and may take a year or more to register. During the registration process, third parties who object to the registration will have an opportunity to oppose the registration. None of the other 'Flappy' applicants are claiming earlier use than UAI, which will determine who is entitled to the registration."

Because holding a federal registration is not required in order to combat trademark infringement, UAI intends to "fully pursue and enforce its common law rights" to the term. Thus, the claim it filed with Apple, which has begun issuing notifications to infringing app makers, most of whom have been "respectful" of UAI's mark and have voluntarily removed the infringing content.

Lundeen & Lundeen also noted that UAI hasn't attempted to make money off of this or tried to force infringing games off the market. "We have not demanded that any of the clones pay us damages, take a license or stop distributing their games (with appropriate re-branding to avoid palming off on the good will of UAI's 'Flappy' trademark)," it stated. "UAI is not in any sense a 'trademark troll'."

Original Story:

In hindsight, it makes sense: In the wake of the flap over Flappy Bird, a company called Ultimate Arcade Inc. has laid claim to a trademark on the word "flappy," and is firing out trademark infringement notices to developers of games "inspired" by the surprise hit mobile game. The notice claims that UAI has used the mark since at least February 12, 2006, and that it has licensed the title numerous times over the years to companies including Big Fish Games, which hosts on its site a game entitled Flappy.

It sounds at first blush like a fairly straightforward case of trademark trolling, especially since Ultimate Arcade Inc. only filed for a U.S. federal trademark on February 16, not long after the creator of Flappy Bird removed it from distribution. And while it's hardly the only company trying to grab a slice of the pie - no fewer than eight game-related "flappy" trademark applications have been filed by different companies over the past few weeks - Ultimate Arcade appears to be the only one actively trying to put muscle behind it.

But in an unexpected twist, it looks like UAI might actually have some basis for its claim, as Big Fish Games confirmed that it did in fact license the "Flappy" trademark. "We signed a distribution agreement with Ultimate Arcade Entertainment about 5 years ago," a Big Fish spokesperson said. "UAE owns the game, and we have licensed it."

That obviously supports Ultimate Arcade's claim on the mark, but why is it that the trademark filing itself is less than a month old? The application indicates first use of "at least as early as 02/12/2006," and also includes screens of the Flappy game hosted by Big Fish, but there's no indication that the company actually held the trademark in the past. It seems clear that the filing is driven by a desire to capitalize on the Flappy Bird phenomenon, but it also appears that there might be more going on here than first meets the eye.

Source: TechCrunch, U.S. Patent and Trademark Office

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patent trolling, trademark trolling and the like should have very severe consequences...

the only way these kinds of company people get punished are when they bite off more than they can chew with the bigger companies. Smaller companies or individuals have no resources to fight these greedy a**holes and are getting exploited for quick money grabs.

I'm going to trademark my surname and then sue my parents for trademark infringement.

Because no trademark and copyright issue over someone trying to hold power over a word in general has EVER sparked a problem in the business and legal world ever. Oh, we're on the cutting EDGE of cleverness here, aren't we?

Ye gods, the people in tall buildings who think of these things must need more oxygen to the brain in a bad way.

What is the definition of trademark trolling? The Techcruch article indicates that they think this is an attempt to "cash in" on the Flappy Bird craze, but you can't win huge amounts of money in a trademark case. I guess the ultimate goal could be to force the maker of Flappy Bird (if he puts it on the market again) to license the use of the name.

That obviously supports Ultimate Arcade's claim on the mark, but why is it that the trademark filing itself is less than a month old? The application indicates first use of "at least as early as 02/12/2006," and also includes screens of the Flappy game hosted by Big Fish, but there's no indication that the company actually held the trademark in the past.

What do you mean "held the trademark in the past"? If they were selling or operationg a business with products named "Flappy", then they "held" a trademark on it. Registering a trademark does not mean that you own it. Actually using the mark in business does. If we don't assume nefarious motiviations here, then they are registering the mark now because there is now a real threat of confusion since Flappy Bird is now popular. If they do not defend their mark against all the other "Flappy" games, then they will lose the mark. "Flappy" isn't like "Candy" or "Crush". It's not a basic word that describes gameplay. So, a trademark on "Flappy" for videogames wouldn't be outside of the rules or anything.

Micheal Herrera:
patent trolling, trademark trolling and the like should have very severe consequences...

the only way these kinds of company people get punished are when they bite off more than they can chew with the bigger companies. Smaller companies or individuals have no resources to fight these greedy a**holes and are getting exploited for quick money grabs.

This isn't anything like "patent trolling" which is a definite big problem. There is no indication here that they are doing anything besides protecting their mark. Patent Trolls use vague patents to sue for large amounts of money that was made by companies that actually made something. Patent Trolls don't actually create products, they only make money by suing. Big Fish is an actual company that has made tons of games. They are not "trolls" unless you are expanding the definition of "troll" to meaningless proportions.

Has this sort of thing ever happened in any place other than the US?

If they do not defend their mark against all the other "Flappy" games, then they will lose the mark. "Flappy" isn't like "Candy" or "Crush"

You sure about that? A combination of words, sure, but individual words...? I don't think so. In any case, in light of King dropping the trademark for the word 'Candy', how can they honestly think this will work out for them?

Ah! A new title for my upcoming game! Flappy Candy Edge Saga, still in production.

MinionJoe:
I'm going to trademark my surname and then sue my parents for trademark infringement.

Are you operating a business and using your last name as a "brand"? No? Then that won't work. Anyway, your parents were clearly using it before you ...

FalloutJack:
Because no trademark and copyright issue over someone trying to hold power over a word in general has EVER sparked a problem in the business and legal world ever. Oh, we're on the cutting EDGE of cleverness here, aren't we?

Ye gods, the people in tall buildings who think of these things must need more oxygen to the brain in a bad way.

EDGE is on of the few examples of an actual Trademark Troll and they failed. They didn't actually make anything and were not really operating a business using the name as a brand for all the categories they were claiming. So, they lost.

That's not the case here. There are thousands of single word trademarks like "Apple" out there.

odolwa99:
Has this sort of thing ever happened in any place other than the US?

If they do not defend their mark against all the other "Flappy" games, then they will lose the mark. "Flappy" isn't like "Candy" or "Crush"

You sure about that? A combination of words, sure, but individual words...? I don't think so. In any case, in light of King dropping the trademark for the word 'Candy', how can they honestly think this will work out for them?

King dropped their mark for "Candy" because it was opposed by many companies that use that very common word in video games, t-shirts, etc. A trademark request for "Flappy" in terms of games seems a little more reasonable. Especially since it is tied to the main character of the game which they can claim is a "mascot" or something. Like, they can claim they are planning on having a series of "Flappy" games featuring that lovable bird, Flappy. It is a single word, but until recently it wasn't commonly used in video game titles. I think Flappy Bird got a boost from the strangeness of the name.

Am I sure about this? No. Single words are a bit tricky. I doubt anyone is going to go to court over this though. If they did, the opposition might argue that the trademark is invalid. That would be interesting to see.

Right now everyone is pretty much using the word to purposefully cause confusion because of Flappy Bird, so I think the company here has a somewhat valid argument that their IP is being diluted by Flappy Bird and all the other titles.

Clovus:
What do you mean "held the trademark in the past"? If they were selling or operationg a business with products named "Flappy", then they "held" a trademark on it. Registering a trademark does not mean that you own it. Actually using the mark in business does. If we don't assume nefarious motiviations here, then they are registering the mark now because there is now a real threat of confusion since Flappy Bird is now popular.

I was referring to the federal registration, which UAI only just filed for. But as explained in the update, your assumptions are right on the money: UAI has a legitimate and recognized claim on the name and filed to register it with the USPTO once the Flappy Bird thing blew up. I did think it had a "nefarious" look about it at first, but it would seem to be a far more mundane, business-as-usual matter.

This was about as inevitable as finding out that Santa isn't real, and everybody's using him for profit.

I honestly don't know who I want to win here; the money grabbing company that thinks trademarking a single word is a morally acceptable thing to do, or the hundreds of money grabbing people that are flooding a market with identical products off the back of a fundamentally awful and completely derivative "game" that became popular for god knows what reason and is helping to kill an already dying industry by making more game companies want to develop mobile games as they think it'll be more lucrative.

Well.... that's my single-sentence rant for the day.

Actually i can kind of see their point here; they didn't feel they needed to file a trademark for the word 'flappy' since the marketplace didn't present an issue for them. Come 8 years later they will now be accused of being a cheap flippy-bird clone rightly or wrongly.

BUT i don't think in the age of the low cost, quick mobile game being able to trademark a widespread word based on a game no one really played, has effectively gone silent and no one gives a single shit about is justifiable. It will lead to a situation were a litigation company will pump out a single, barely playable product with a single work name and then squat on it.

I don't think they will win this though, they should have filed and defended their trademark before this took place if they really wanted to have the name 'flappy' be there's. They should also have done something since 2006 with the name too. They don't really have a great case here but for the wrong reasons.

Fuckin' trademark trolls. When are the legislators going to realize that the entire trademark and patent laws have to be redesigned?

They used it... But they weren't the ones who made it famous. They're protecting nothing more than their "right" to be the one to profit from the confusion over the more famous game's name. Which isn't the point of trademark - it's what trademark law is there to prevent. So, I think they might get smacked down in court if it came to that, which it might not, given that "Flappy Bird" itself is at least technically off the market.

Ah yes, it would hurt the goodwill of the company who have been using Flappy since 2006 which explains why 100% of the people in the world have never heard of the game Flappy nor of this company.

100% trademark trolling, a useless, pathetic game that no-one has ever heard of going after a game that everybody has heard of under the guise of it hurting business when in fact it could only help their business, with flappy bird pulled from the stores people might mistake this failure of a game with something related to flappy bird.

Seeing a lot of "trademark troll!" comments in here, so I know that no one read the article.

The facts of the case:

1) The product in question was made back in 2006, long before "Flappy Bird" was a gleam in its creator's eye. Meaning that this "troll" has a time machine and/or a soothsayer/gypsy fortuneteller in its employ, or more likely, that it isn't an actual troll.

2) The trademark was filed for a game that the company actually created, they did not file the patent just to sit on it and do nothing. Trademark trolls by their very nature do not actually go out and produce a product based on the item they trademarked, they sit on the trademark and let their lawyers take over from there.

3) The company has licensed the title out to other companies in the past, which confirms that at least in some degree, they likely had legal use of the title before anyone else was using it.

It's pretty hard to argue that UAI is "trademark trolling" here, given the facts. Far more likely that with all of the "Flappy" games out there, they realized they had filed a trademark rather late in the game (probably presuming no one would ever name a game "Flappy" anything) and are just playing catch-up in order to keep their own brand from being pinned up as a "clone" of a game that came out seven years AFTER theirs did.

All this makes my soul hurt the god dmaned banner saga... patent saga? pissed me off and although theses peeps ain't as darkly evil as King with Candy under attack as well I just don't know at all what the point of all this is with people just being wholesale dicks with words... UK/US patent law needs reviewing.

Should have to trademark the entire name, now just a single word. It's crazy.

They are not protecting anything they just realized that they have a great opportunity to cash in on the flappy bird craze. If there was no F˘appy bird no one would give a shit about the word Flappy.

CriticKitten:
Seeing a lot of "trademark troll!" comments in here, so I know that no one read the article.

The facts of the case:

1) The product in question was made back in 2006, long before "Flappy Bird" was a gleam in its creator's eye. Meaning that this "troll" has a time machine and/or a soothsayer/gypsy fortuneteller in its employ, or more likely, that it isn't an actual troll.

2) The trademark was filed for a game that the company actually created, they did not file the patent just to sit on it and do nothing. Trademark trolls by their very nature do not actually go out and produce a product based on the item they trademarked, they sit on the trademark and let their lawyers take over from there.

3) The company has licensed the title out to other companies in the past, which confirms that at least in some degree, they likely had legal use of the title before anyone else was using it.

It's pretty hard to argue that UAI is "trademark trolling" here, given the facts. Far more likely that with all of the "Flappy" games out there, they realized they had filed a trademark rather late in the game (probably presuming no one would ever name a game "Flappy" anything) and are just playing catch-up in order to keep their own brand from being pinned up as a "clone" of a game that came out seven years AFTER theirs did.

its still nothing more than copyright trolling whole idea that someone is able to copyright single word like flappy is insane and dosent make any sense at all. not to forget they started doing this just to get free money that you can get from legal fights its kinda like the guy who copyrighted word big mama (thats right someone managed to do it) just because he had small cloth store which used that name and then 10 years later he lawsuited multible big companies who had products using those lines.

at risk of loosing their name? good. they shouldnt have a right to hold words like flappy as trademarked names to begin with. Then again, flappy is not a word to be found in a dictionary to begin with, so maybe it is a unique title after all.

kaizen2468:
Should have to trademark the entire name, now just a single word. It's crazy.

but the entire title of thier game IS just a single word.

drakonz:
its still nothing more than copyright trolling whole idea that someone is able to copyright single word like flappy is insane and dosent make any sense at all.

First off, a copyright is different from a trademark.

Second, no, it's not trolling. As I established before, the trademarking company a) made an actual product out of their namesake; b) did it 7 years prior to the more recent and more popular use of the term. It is by definition not trolling, nor is it a misuse of a trademark. The company created a product which is fully licensed to a distributor, and is now taking additional steps to protect itself from other brands of similar name.

Third, the trademark is one word because the title of the game in question is one word long. There is nothing wrong with trademarking one word if the actual item or product to be trademarked is a single word.

People need to read the actual article and not just leap to conclusions based on the article's title. It's just a couple of paragraphs, people, sheesh.

The response by the law firm is irrelevant and absurd. Just by copy/pasting the legal term of what 'trademark' means, doesn't mean they are entitled to the word 'Flappy'

The Android game was published TODAY. Show me evidence that the game was titled "Flappy" in February 2006.

Yes, they have a game titled 'Flappy' NOW
Yes, Ultimate Arcade licensed a game to Big Fish Games. What was it called in 2006?
Yes, you don't need to file for trademark to own the title but the law does not apply to Ultimate Arcade

...until the law firm or Ultimate Arcade PROVES they had a game title FLAPPY in 2006.

Prove it and all of us will back off.

CriticKitten: Do you represent the law firm or Ultimate Arcade?

"We signed a distribution agreement with Ultimate Arcade Entertainment about 5 years ago," a Big Fish spokesperson said. "UAE owns the game, and we have licensed it."

There is no mention in Big Fish Game's above statement that the name that was licensed 5 years ago was titled "Flappy"
The statement above is correct but they have not confirmed what the title was back in 2006. All I know is that the game title can easily be changed recently after Dong Nguyen's Flappy Bird got popular.

Strazdas:
at risk of loosing their name? good. they shouldnt have a right to hold words like flappy as trademarked names to begin with. Then again, flappy is not a word to be found in a dictionary to begin with, so maybe it is a unique title after all.

kaizen2468:
Should have to trademark the entire name, now just a single word. It's crazy.

but the entire title of thier game IS just a single word.

So to infringe it, you should need to be a game and the title be that single word.

kaizen2468:

Strazdas:
at risk of loosing their name? good. they shouldnt have a right to hold words like flappy as trademarked names to begin with. Then again, flappy is not a word to be found in a dictionary to begin with, so maybe it is a unique title after all.

kaizen2468:
Should have to trademark the entire name, now just a single word. It's crazy.

but the entire title of thier game IS just a single word.

So to infringe it, you should need to be a game and the title be that single word.

The problem however arrises that according to current laws any title that people will associate with "flappy" (like flappy birds) and is very popular overshadows the original and is infringing upon it. So the companys response? sue everyone with a word Flappy in it.

 

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