Angry Birds is a beloved mobile game created by Rovio Entertainment. It was first released for iOS in 2006 and since then it has been downloaded billions of times worldwide. There has also been an Angry Birds movie, a comic book mini-series and a comic strip series. The sequel to the first movie is due to be released in the US this year.
Needless to mention, Angry Birds is a mega money-maker. So it’s not surprising that Rovio’s feathers got majorly ruffled when a restaurant in Los Angeles rattled its cage by adopting the name Angry Birdz Chicken.
Rovio argue that the restaurant is infringing its trade mark rights and in particular that the restaurant is trying to capitalise on the goodwill and reputation that had been amassed in the Angry Birds trade marks and brand. Rovio also argue that the restaurant’s actions will cause confusion and deceive consumers as to the origin of the restaurant (in other words, that consumers will believe the restaurant is an ‘official’ Angry Birds restaurant).
Rovio sent a cease-and-desist letter to the restaurant earlier in the year but, having failed to resolve the matter amicable, Rovio has now taken the restaurant to court in California.
A few take-away points:
The Angry Bird trade marks are incredibly valuable. It might sound obvious but it is worth pointing out that the principle asset that protects the enormous value in the Angry Birds brand is a simple trade mark. It is an intangible registered right, evidenced by a certificate and an entry on a trade marks register. Businesses wishing to protect the value in their brands should appreciate the importance of claiming trade mark protection as early as possible in the life of the business and should take advice on the what can and should be protected (e.g. what marks – words, logos, straplines – what territories – UK, EU US etc.).
Trade mark infringement doesn’t necessary require confusion. In order for Rovio to succeed in its trade mark infringement claim, it is not necessary for it to show that the general public will be confused into believing that the Angry Birdz Chicken restaurant is actually owned/run/licensed by Rovio (although they have also made this argument). Trade mark infringement may also be claimed on the basis that the trade mark enjoys a substantial reputation (almost certainly the case for the Angry Birds trade marks) and that the infringer is diluting, blurring, tarnishing and/or taking unfair advantage of that substantial reputation. For example, if the man on the street started selling Bentley toothbrushes, the major issue for Bentley would not be that consumers might think they had gone into dental products (confusion), the major issue for Bentley would be that, even though consumers may not be confused, the prestige of the Bentley brand in the eyes of those consumers would still be undermined by the fact that cheap products were being sold under that brand. In other words, it is important for trade mark owners to be aware that, even if an infringer is not selling identical goods or services, it may still be possible to take action against the infringer if the trade mark owner can prove that their brand enjoys a substantial reputation.
Imitate with caution. It is tempting for businesses to ‘take inspiration’ from successful brands and to seek to ride on the coat-tails of that success by choosing a similar name, logo or brand. But this is a dangerous tactic. There are a range of avenues open to intellectual property owners who believe that their brand identity has been imitated unlawfully by a third party (including, potentially, trade mark infringement, passing off, unfair competition, copyright infringement and design right infringement). In such circumstances, the perceived value or advantage achieved by imitating the successful brand in the first place could ultimately be dwarfed by the cost and hassle associated with defending a claim and subsequently being forced to change the business’s name and branding.
Always respond to infringement. Finally, it is important for trade mark owners to enforce their rights and to not tolerate infringement. If Rovio had taken the view that this little restaurant in LA was not such a big deal, the Angry Birdz Chicken brand could have expanded to the point where a major restaurant chain was benefiting unfairly from Rovio’s investment in its brand and reputation. As a general rule, the longer trade mark infringement goes unchallenged, the more difficult (and expensive) it is to stamp it out. The majority of intellectual property infringement cases do not go all the way to trial and sending a cease and desist letter at the earliest opportunity is often a cost-efficient way to nip infringement in the bud.
Briffa are experts in all aspects of trade mark law and practice. If you would like to discuss how best to obtain protection for your business and brand, or if you would like to discuss a potential infringement claim, please do not hesitate to get in touch with us on firstname.lastname@example.org or 020 72886003 and one of our specialist IP lawyers will be happy to have a consultation with you without charge.
Written by Éamon Chawke, Solicitor