Here is another notice that we recieved from them after questioning the validity of the claim (posted below). Unfortunately we do not have the resources to take this to court here in the US, which is where Ultimate Arcade and their attorney Marcee Lundeen are located. We also do not want to risk putting our account in bad standing with Apple so we have agreed to disagree and “remove the app from sale while we investigate the validity of the claim further”. It would be great to hear if any others have had success with a response that has allowed them to keep their app in the app store with out being sued or having their developer account shut down by Apple. Our game was not getting that many downloads (around 300 a day) so it’s not a huge concern financially on our end. Just very frustrating when someone like this comes in and tries to bully everyone else.
Our client, Ultimate Arcade, Inc. (UAI) has used the FLAPPY mark for more than 8 years in connection with its own computer game. As you can appreciate, UAI has invested substantial time, money and effort to establish recognition of their distinctive trademark, FLAPPY™. As such, our client has established considerable good will in the mark FLAPPY™ for its game, which it is now being forced to protect. We are not concerned with the content of your game, -----. Our concern lies only in the use of the FLAPPY mark in connection with your game title and perhaps metadata, description and keywords.
The issue is whether your recent variation on the FLAPPY mark in the App Store or elsewhere might give rise to a likelihood of confusion with UAI’s pre-existing FLAPPY mark that the two products come from or are sponsored by or somehow affiliated with the same source. In trademark law, the issue of likelihood of confusion typically revolves principally around (1) the similarity or dissimilarity of the marks and (2) the relatedness of the goods. Our mark FLAPPY™ is wholly contained in your mark ------, and the goods are most certainly related, computer game software; thus, it is very likely that a consumer would think that the two games come from or are licensed by the same entity. For example, it is likely that a consumer would perceive ------ to be a version offered by the proprietor of the FLAPPY game.
Given the timing, you are apparently attempting to capitalize on the infringing FLAPPYBIRD game that was taken down. It appears this represents a deliberate attempt to create a likelihood of confusion with our FLAPPY™ mark. Please be advised that the very recent infringement of our FLAPPY mark by FLAPPYBIRD and its clones does not in any way excuse your own infringement our mark.
We hereby demand you remove FLAPPY from the title, keywords, description and all metadata so that the game title does not come up in a search for our client’s FLAPPY game. Apart from your use of FLAPPY we are not concerned about the remainder of your game content or appearance.
You are warned that any further use of the FLAPPY trademark will be considered willful and deliberate, and our client will seek enhanced damages and attorney’s fees for any continued infringement of our client’s trademark rights.
Please let me know if you have any questions.
