Trademark Disputes: Examining Two Separate Lawsuits Over Angry Birds
Most people know how to play Angry Birds, the slingshot-themed video game by a Finnish company called Rovio. It isn’t so well-known, however, that Angry Birds has been the focus of some significant trademark disputes since its 2006 inception. Here are two of the most notable cases.
Adams vs. Hartz
Image via Flickr
The person who conceived of Angry Birds was not a member of Rovio. Rather, it was Seattle artist Juli Adams, the woman who designed Angry Birds cat toys for the Hartz Corporation of New Jersey in 2006. Adams is now suing Hartz on the claim that she hasn’t been properly compensated for her lucrative intellectual property.
Here is a brief timeline of Adams’ journey from art festival cartoonist to plaintiff.
- Summer 2006: Hartz Director of Marketing Tim Ford notices Adams’ cartoons at an art festival and asks if she would design a line of toys for his company. Adams enters into an agreement with Hartz without consulting an attorney first.
- November 2006: Adams executes a five-year “Confidential Exclusive License Agreement” pertaining to Angry Birds Hartz products. Because the first Angry Birds product does not sell until March 2007, Adams believes that the agreement is binding through March 2012. All rights will supposedly revert to Adams at the end of this five-year period.
- March 2007: Hartz files for trademark registration of “Angry Birds” under the “Toy and Sporting Goods” category.
- May 2007: Hartz asks Adams to sign “Amendment Number One,” a document granting Hartz the right to file for the Angry Birds trademark. Adams signs the amendment, unaware that she is giving up rights to her intellectual property.
- August 2014: Adams files a complaint seeking to nullify Amendment Number One. Her complaint claims that the amendment is invalid because she did not receive “valuable consideration” pursuant to signing the document.
Concept to Understand: Valuable Consideration
“Valuable consideration” is an important element of contract law. Because the concept is interpreted differently by different people, there is much room for debate in contractual cases like this.
The concept of “valuable consideration” addresses the reason any person would be motivated to enter into a contract. For a contract to be legally binding, each party must get something out of it. Adams claims that she received nothing for signing Amendment Number One and that the document is, therefore, invalid.
The outcome of Adams’ case will depend on whether Hartz can prove that it gave Adams money or any other form of compensation in exchange for the trademark filing. If Hartz can’t prove that it gave Adams valuable consideration, she stands to become a very rich woman.
From Cat Toys to Chicken Chips
Kimanis Food Industries recently won the right to continue selling “Angry Bites,” a cone-shaped, chicken-flavored snack chip with packaging that bears a striking resemblance to Rovio’s Angry Birds packaging. Angry Bites are sold in a bright red bag, the name of the snack printed in a slanted white font that is agonizingly similar to Rovio’s font. A pair of large cartoon eyes with angry, slanted brows hovers above the snack name. A shock of yellow tail feathers is sketched slightly askew of the eyes.
It’s easy to see why Rovio took offense at Kimanis Food’s copycat packaging. While the artistry and font aren’t exactly the same, it’s obviously no accident that Angry Bites employs a color scheme and logo that are very similar to that of Angry Birds.
Who Came First, Rovio or Kimanis?
Sometimes, an important factor in determining the outcome of a trademark dispute is which company arrived on the marketing scene first. In this case, Rovio was first. The company began using its Angry Birds mark, including the font, art, and color scheme, in December 2009. It wasn’t until nearly two-and-a-half years later, in April 2012, that Kimanis applied for an Angry Bites trademark.
Even so, the Intellectual Property Office of Singapore (IPOS) ruled in favor of the food company.
According to Sandy Widjaja, Registrar of the case, Rovio was unable to establish the “reasonable likelihood of confusion” needed to wipe out the snack company’s packaging. While Angry Birds packaging and Angry Bites packaging are similar, a customer perusing a snack food aisle wouldn’t likely be fooled into thinking that Angry Bites chips were manufactured by Rovio.
Concept to Understand: Likelihood of Confusion
“Likelihood of confusion” is an abstract term that basically asks two questions. First, will consumers be confused, fooled, or misled by a questionable trademark? Second, will similarities between two trademarks cause consumers to attribute a product to the wrong source?
The United States Ninth Circuit Court upholds the evaluation of the following factors when determining likelihood of confusion:
- How likely the public is to attribute the plaintiff’s mark (in this case, Rovio’s Angry Birds) to the defendant’s company (Kimanis Foods).
- Whether the defendant (Kimanis) and the plaintiff (Rovio) use their marks for the same purpose. Kimanis uses its mark for snack sales; Rovio uses its mark for gaming and Angry Birds merchandise.
- How similar the two marks are to each other in sight (Angry Bites logo vs. Angry Birds logo) and sound (the sound of the words “Angry Bites” vs. the sound of the words “Angry Birds”).
- Whether there have been any instances of consumer confusion between the two trademarks. Actual instances are not necessary to prove likelihood of confusion, but they can certainly advance arguments for it.
- Whether the defendant (Kimanis) appears to be trying to take advantage of or ride the coattails of the plaintiff (Rovio).
- Whether the marketing channels used by the defendant and the plaintiff are similar. If Rovio’s Angry Birds were a breakfast cereal and not a game, for example, the marketing channels of Kimanis and Rovio would be more similar.
- How likely it is that the plaintiff (Rovio) will want to sell a product similar to the defendant’s product in the future. In this case, that product would be cone-shaped chips.
Angry Birds is arguably one of the most successful video games in history. It’s not surprising that the artist who originated the cartoon would want her share of the pie, nor is it surprising that a food company like Kimanis would want to share in a bit of the Angry Birds glory. Disputes are likely to crop up as long as there is money to be made. The expert advice of a trademark lawyer is invaluable in situations such as this.