New Zealand’s flightless creations: Why Kiwis need to protect their intellectual property

Article written by: Penny CatleyThomas Huthwaite    |   Friday 14th February 2014

New Zealanders are great at creating.  There’s no doubt that we have very talented people in many fields – including film, music, art, software and gaming.  Part of that creativity stems from a stereotypical “can do” attitude.

But there are other Kiwi stereotypes that let us down.  One of those is our anti-confrontational, “she’ll be right” attitude and our unwillingness to engage professionals or to spend money unless a product or service is on sale.  This can have serious consequences for the value and longevity of our creations. 

Here is an example.  Flappy Bird recently became an internet and mobile phone sensation.  The game is a simple one designed for touchscreen devices, where players must guide a clumsy bird through a series of pipes.  The game is also maddeningly difficult, resulting in so many complaints from players that the developer removed the game from the Android and Apple app stores earlier this week.

Flappy Bird was reportedly earning approximately US$50,000 a day in advertising revenue, so it was no surprise to see several clones hit the market.  One of these is Flappy Bee (or “Happy Bee” as its title screen says), a game where players must guide a clumsy bee through a series of obstacles.  It currently sits in the top 5 apps on the Apple store.   The Flappy Bird developer has however not taken issue with this.

But Flappy Bee is not just trying to exploit the success of Flappy Bird – it is also using the central mascot and imagery from Bee Leader, a touchscreen game by Kiwi designer, Flightless.  Here is a visual comparison:

Flappy   Bee Bee   Leader
Title   screen Title   screen
App   icon App   icon

Fortunately, Flightless has submitted a content dispute with Apple.  However, its public statements are somewhat more fatalistic, with Creative Director John O’Reilly reportedly saying “It’s not costing us revenue, but they are using our copyrighted artwork and IP ripped directly from our game…  We’re gutted and feel powerless as a small indie games company.”

Whenever someone misappropriates your intellectual property there is the potential for some form of loss, for example: diversion of trade, lost revenue/profits, dilution of your brand, and/or loss of control of your creation.  Yes, Flightless is a small company – but it has generated success from its creations and it should be taking more stringent measures to protect those creations.  Flightless should be screaming daylight robbery (unless of course there are other reasons for not causing a fuss).  It’s time to take note of intellectual property rights and enforcement measures, because there are options available.

There are always two aspects to intellectual property protection.  The first is registration or formal creation of a legal right.  For example, for trade marks, that comes through use of the mark or registration on the trade marks register.[1]  As mentioned above, we’re good at creation – less good at taking the time to register or protect our rights.  Flightless does not appear to have registered its trade marks, at least in New Zealand .  Compare that to international company, Midasplayer.com Ltd. (trading as King.com), who recently made headlines for registering “Candy Crush” and “Candy” in an effort to protect its creation.[2] 

Companies need to invest in their intellectual property rights.  Start thinking of it as an insurance for creative effort and build that insurance into initial development costs.
Registration is especially important for the second aspect of intellectual property protection, which is enforcement.[3]  Registration provides a public record of your ownership, and it gives you the right to threaten and/or initiate infringement proceedings.  More often than not, proceedings are settled – but you need a valid right in order to take a strong legal stance and make your grievance known to an infringing party.

There are also other ways of enforcing your rights, and Flightless hit that one on the head: file a complaint that will lead to the content being removed.  For the app stores, complaints can be made to Apple or Google.  If the product is a physical one, auction websites like TradeMe and eBay have their own procedures.  Social media websites have takedown policies, as do most file-sharing platforms (e.g. MEGA).  Domain name complaints can be relatively inexpensive.  The bottom line is that it’s important to stop the infringing activity as soon as possible.

Here’s a final example to illustrate the importance of enforcement.  A Kiwi company developed a new type of footwear.  It combined development of the product with a catchy trade mark, which it registered.  The mark was such a massive success that everyone in the country knows and uses it today.  But, the company for many years did not enforce its legal rights and acquiesced to other traders using its mark – now that mark is in jeopardy because the owner may have lost control of it.

That mark is “JANDALS”, a word created by the fusion of “Japanese” and “sandals”.  Whether the current owner will able to hold on to its trade mark remains to be seen.[4]
Once you have registered your brand, you cannot rely on others to “look after it” unless you instruct them to do so.  You must regularly monitor your competitors’ behaviour and take prompt action to prevent would be infringers, when discovered. 

The lesson for Kiwi creators is this: if you want longevity for your creation and the best possible protection against theft, obtain legal protection.  Neglecting your intellectual property can result in a loss of control over your own brand, to the point that your creation becomes little more than a springboard for others to profit from and take flight themselves.
 


[1] In New Zealand, copyright will arise simply by creating an original work – no registration is required.  There are also other means of protecting unregistered intellectual property rights, such as the tort of “passing off” and various grounds under the Fair Trading Act 1986.
[2] Candy Crush Saga is a “match-three” puzzle game, first released on Facebook and since on smartphones.  It has been the subject of many copycats and other games seeking to trade on the popularity of the term “candy”.
[3] Copyright does not require registration in New Zealand, meaning that enforcement is all the more important.  Copyright suits are relatively rare in New Zealand.  There are also other means of protecting your copyright content from unauthorised use – such as using various digital rights management (DRM) technologies.
[4] See our other article for more: http://www.baldwins.com/jandal-caught-in-tide-of-genericide/

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