THE NEW GILDED AGE (Part 2)
THE NEW GILDED AGE (Part 2)
A Classic Tale of David vs. Goliath
09th February, 2019 0
Back in December The Review published a cover feature about a new Saginaw-based start-up company called Saginawty, LLC, who successfully developed a new digital application called BadEgo, which gives users a fun-based and humorous range of expressive diversity allowing its users to create adult-oriented avatars and renderings.
Shortly after their launch, however, BadEgo was served with legal action claiming trademark infringement by Snapchat, a California-based company that created the application Bitmoji, which is one of the Top Ten selling digital applications on the Internet similar to BadEgo because both applications allow users to create their own animated avatars; but different in a big-way because Bitmoji allows users to only create squeaky-clean PG-rated avatars, while BadEgo delves into more mature and adult-oriented forms of visual expression.
In the papers filed by Snapchat that allege trademark infringement, the company claims because they filed and created Bitmoji first, their rights are ‘senior’ to that of BadEgo; however, if this were true it would fall into line that online dating services such as Match.com and EHarmony.com would be able to establish similar claims.
Consequently, the question becomes whether or not this is truly a case of trademark infringement, or a simple matter of yet another large monopoly attempting to erase away freedom of consumer choice in the competition of the marketplace.
Interestingly enough, the word emoji originalyl meant ‘pictograph and comes from the Japanese language, as its origins date back to first appearing on Japanese mobile phones in 1999. It became increasingly popular worldwide in the 2010s after being added to several mobile operating systems. Amazingly, today they are considered to be a large part of western popular culture; indeed, back in 2015, Oxford Dictionaries named the ‘Face with Tear of Joy’ emoji the ‘Word of the Year’.
According to BadEgo CEO Andrew Lay, the issue at hand is one of simple bullying. “Most Americans understand the inherent unfairness and devastating effects of bullying,” he states. “Trademark bullying involves small businesses as victims, not children, but the principals are the same. A bigger meaner kid sees your lunch snack and decides to take it for himself just because he can.
The standard Trademark-bully (the USPTO defined Trademark bullying as when a mark-holder is “using their trademark rights to harass and intimidate another business beyond what the law might be reasonably interpreted to allow”) over-flexes their rights, engaging in what should obviously be a losing battle, except their opponent doesn’t have the financial resources to see through the fight. This gives the Trademark-bully another easy win, despite what may appear to be tenuous legal grounds.
While less publicized than other problems in the business sector, there is a trend in the conflict of Big Business vs small business in the intellectual property process that tends to allow the substantial resources of Big Business to procedurally overwhelm the rights of the small business.
“Possessing more limited resources, smaller companies are no match for the massive economic disadvantage posed by a large conglomerate with massive resources to drag issues out in litigation, making it completely unaffordable for the small business to properly respond, defend, and reinforce the merits of their position,” continues Lay.
“Such is the situation we presently find our company situated. We have developed a new and unique avatar-based expression application that falls squarely into adult humor. Yes, you might catch our avatars slamming drinks, smoking weed, flirting with your boyfriend or girlfriend - and this is diametrically opposed to what Bitmoji offers its users.”
To further buttress his position, Lay makes a cogent point: “These days most people, especially younger generations, know how to build their avatar. Existing within hundreds of video games and applications - it is a common technology. Setting aside games that ‘emote’, Bitmoji, has been the largest avatar expression platform to date; and the simple descriptiveness of their name bit (digital/small piece) + moji (from emoji - expressing an idea or emotion) makes sense with what they do, which includes targeting children to use their app. This makes the name we have chosen - Badmoji, an obvious description of the intention of our adults-only app, which is where things get interesting.”
“While we are comparing the words ‘Bitmoji’ and ‘Badmoji’, we must also realize that the suffix word ‘Moji’ itself is derived from the word ‘Emoji’ found in the dictionary(and was so popular, Oxford Dictionary used an emoji as the ‘Word of the Year’ in 2015), which is trademarked (Serial numbers: 86810269, 86638988, 86659249, 87032943, 87058871, 87060706, 77979515) by several companies that are not Snap; plus there are over 100 other trademarks that include the term ‘moji’ that currently coexist in the market with Bitmoji. Therefore, we must compare and contrast with words Bit and Bad.”
“Obviously, anyone with a 3rd grade education can see the dramatic differences in the words. In fact, if it was confusing for the general public to recognize the differences between the two words, we wouldn’t have children’s books that we expect 4-year old kids to differentiate and understand two three-letter words next to each other; both a single syllable, starting with the letter B, middle letter a vowel, and ending with a hard consonant. If that was all the similarity it takes to confuse the general public, then we wouldn’t possibly expect a child to understand the difference of words in the well-known fairy tale book (and phrase) “Big, bad wolf”!
“Consequently, the basis of having a Trademark, is reserving a name that no one else can use, or so similarly use, that would cause confusion among customers or potential customers. While we jumped through all the appropriate hoops, recruiting an Intellectual Property firm to research our proposed mark “Badmoji”, to be sure it would offend no one, including Snap’s Bitmoji, this did not stop from them from opposing us.”
At this juncture, most small businesses back down, unable to economically compete with what can quickly become six-figure legal bills. But Lay says this is also where the Badmoji fight will run astray of previous preconceived norms.
“We decided to side-step their legal battle against our name that was preventing us from launching our app, and launched under an alternate name BadEgo, just to move forward (you can download now at www.BadEgo.app, or the dirtier version at www.bigbadmoji.com).
“This was necessary to prevent another standard bullying tactic to bridge the matter over to yet another case in Court, by trying to get an injunction to shut us down until the Trademark dispute resolves, a year and a half later.”
Now, to even further skew the norms, the company has decided to pit their company co-founder Andrew Lay against Snapchat’s top-notch Intellectual Property firm in the Trademark Trial & Appeals Board proceedings that will follow next.
“Prepare for a no-holds-barred very public dispute, “ concludes Lay. “We will expose Snap for the bullies we believe them to be.”
Editor's Note: The REVIEW reached out to Snapchat's attorney Joshua Richman for response to issues raised in this article, but did not receive a response.
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THE NEW GILDED AGE (Part 2)