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Trademark trolls are ‘flapping’ away

As a developer you’ll know your creation has reached an all time high when patent and trademark lawyers are already claiming someone owns your name.

Real Life Flappy Bird

Flappy Bird is not exactly the best game out there in terms of graphics and gameplay. The game elements are meant to look like old-school 8-bit console graphics, and the gameplay only involves tapping anywhere on the screen. But this is just how developer Dong Nguyen meant it to be. It’s a simple as could be, but also challenging as hell.

Which is why millions of casual gamers have become addicted to this viral hit, tapping away on their smartphone and tablet screens just about anywhere. In an interview with Rolling Stone, the elusive Nguyen explained that he envisions the best games to be this way — playable anywhere, with the simplest of controls. But with gameplay so challenging, Flappy Bird can either be fun or frustrating.

Flappy Bird lives on elsewhere

But even as the game has reached the top spot on the iTunes App Store and Google Play Store, Nguyen decided to pull out, even if he was already earning a reported $50,000 a day from ads. He says he was not used to a life in the limelight, and could not stand the pressure of being responsible for the negative effects of addiction to the game on other people. He simply wants to build mobile games, he says.

Still, the trend has spawned a handful of clones and ports, with reports that a “Flappy” clone is now released once every 24 hours on app stores. Take the popular Miley Cyrus meme-based Flying Cyrus, for example, or Flappy Doge or even a Flappy Bird mod for Grand Theft Auto. It has become too unwieldily that both Apple and Google have started banning games with “flappy” in their names from submissions to their respective app ecosystems.

After the pull-out from the app store, enterprising individuals even started selling their devices on eBay with Flappy Bird pre-installed, with used phones going for as much as $100,000.

Of course, this has not stopped ports of the game from cropping up on non-mobile devices, too, like a desktop-bound version of Flappy Bird from online Flash-based game site Jojo.net, or — taking it to the next level — Flappy Bird in real life. The IRL version of Flappy Bird (pictured above) actually stemmed from a New York-based “High Low Tech” meetup group that has applied old-fashioned circuitry and electronics in creating an analog version of the digital game.

Has someone trademarked “flappy”?

But you’ll know that Flappy Bird has reached an all-time high when patent and trademark lawyers are already threatening lawsuits over the use of “flappy”. A company called Ultimate Arcade Inc. (UAI) has been sending cease-and-desist orders to game developers who have used the term in their game titles. UAI goes as far as claiming to have licensed the “flappy” name to several game developers, including Big Fish Games.

According to the company, it has been using the term “flappy” in its games since February 12, 2006, and that other developers using the term are causing “confusion among consumers” who may mistake the games bearing the term “flappy” to have originated from UAI, when it is not the case.

TechCrunch points out, however, that UAI does not in fact own the trademark yet. Rather, the company filed for the trademark mid-February this year, and it seems the company is not the only one filing to trademark “flappy” or even the “flappy bird” name.

As trademark systems go, the registration is usually granted to the first actual user of the mark, although terms deemed to generic are not considered trademark-able. The USPTO actually offers a few tips and guidelines on trademark registration, although first-use and generic cases are often subject to legal debate, with trade names and marks being considered intellectual property.

Should developers worry? At this point, UAI’s lawyers are adamant that the company was first to use the term in gaming, and says most of the developers contacted have agreed to take down their games from the app stores. However, it would seem that UAI’s registration of the name just this year can be seen as a reaction to the meteoric rise of Flappy Bird in the first place.

As viral hits go, Flappy Bird will go down in history as one of 2014’s biggest trends, but it will likely disappear in obscurity, or the “flappy” reference will likely become ingrained enough into mainstream culture that a trademark would not be deemed enforceable.

 Featured image credit: Fawn Qiu

J. Angelo Racoma
J. Angelo Racoma has written extensively about mobile, social media, enterprise apps and startups. Angelo develops business case studies for Microsoft enterprise applications and services. He is also co-founder at WorkSmartr, a small outsourcing team.

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