This was bound to happen. A company calling itself “Ultimate Arcade” is attempting to trademark the word “Flappy,” following the fervor around the viral App Store game, “Flappy Bird,” whose disappearance led to the creation of hundreds of clones, parody apps, and other similarly-inspired titles. Of course someone would try to cash in on this craze, but Ultimate Arcade is now not just attempting to gain the trademark for itself – it’s actually going after developers who are using the word “Flappy” in their game’s name, and claiming trademark infringement.
According to a notice sent to the developer of one such title, “Flappy Devil,” which arrived by way of Apple’s legal team, Ultimate Arcade, Inc. (UAI), and its principals Alan and Tina Balodi, are advising the app developer of their trademark application. The letter alleges that UAI’s use of the word “flappy” dates back as early as February 12, 2006, and has been used in the company’s computer software and downloadable games.
One example they specifically point to is this Flash-based online game simply called “Flappy,” which involves a flying bird you navigate using your mouse while trying to avoid smaller birds, and popping balloons. UAI claims that Big Fish Games, is one of its licensees.
(We’ve reached out to Big Fish Games to confirm details surrounding this claim,
and will update if they respond. We’re told that Big Fish signed a distribution agreement with UAI almost 5 year ago. UAE owns the game, and Big Fish licensed it. “So technically – yes, we do have a license to use the trademark FLAPPY,” they say.)
UAI currently hosts that same “Flappy” game here on its own website.
UAI warns in the letter also that it’s the owner of the trademark “Flappy” for computer games, and that the developers who are now using that same word in their downloadable mobile games and apps today are likely creating “confusion among consumers” who may mistake the newer “Flappy” games as being created by or affiliated with UAI. (Uh, doubt it!)
As for UAI, the company doesn’t have any App Store titles itself.
The letter serves as notice about the trademark application, saying that there are “more than 100 mobile “prpperties [sic] offered in the App Store for sale and for free download” and, after receipt of this notice, they “clearly manifest a scheme of deliberate and/or willful infringement of the UAI trademark.”
“Flappy Devil’s” developer, Ale Moreno, tells TechCrunch that UAI has also requested that his title be pulled from the App Store.
Moreno is not the only one receiving notice from UAI. Members on the Corona Labs forums, including the developer of “Flappy Wings World,” have also been sent the same letter. Others still, like the makers of “FlapThulu Flappy Madness” and “Flappy Bat” have taken to Twitter with their complaints.
— Stephen Eddy (@steddyman) March 11, 2014
Uh oh… just got a trademark infringement notice from someone about the use of the word FLAPPY in my game’s title.
— Paul Pridham (@madgarden) March 11, 2014
It’s worth pointing out that UAI doesn’t actually appear to have the trademark they claim – they filed for the trademark in mid-February 2014, when the “Flappy Bird” craze was blowing up. And they are far from the only company attempting to trademark “Flappy” or “Flappy Bird” it seems.
Flappy Trademark Application:
UPDATE: A response from LUNDEEN & LUNDEEN, PLLC:
Thank you for contacting us and getting the word out about our client’s superior rights in the trademark FLAPPY. As you know, Ultimate Arcade, Inc. (UAI) is a 15-year-old company and has continuously used the mark FLAPPY™ for computer games since 2006; its FLAPPY branded game has enjoyed hundreds of thousands of plays. See, for example, http://www.y8.com/games/flappy. UAI’s FLAPPY branded Android version of the game is available from the Google Play store and Amazon.
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. 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 US, 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. 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 this process, third parties who object to the registration will have an opportunity to oppose the registration. In the meantime, UAI intends to fully pursue and enforce its common law rights arising through the extensive and previously exclusive use of the mark FLAPPY.
We contacted Apple and asked them for assistance in removing the unauthorized game brand names that are confusingly similar to UAI’s FLAPPY mark, and while Apple has not allowed UAI to list its FLAPPY branded game in the app store, Apple has, as you know, begun notifying the developers of our rights. Thus far, most of the developers contacted have been respectful of our rights in the mark FLAPPY™ and have agreed to remove FLAPPY from their titles, metadata, keywords and descriptions.