Are you a game lover? If your answer is yes, I’m sure you know about “Angry Birds”. Even non-gamers know of these bad-tempered birds, which have become a phenomenon all over the world, winning over both children and adults, who play these games on their PC, smartphones or tablets.
The popularity of the Angry Birds games has naturally brought much fame to the game’s characters as well. In business theory, we know that popular trendsetters will develop goodwill, which in turn brings profit; and of course, something that is profitable will attract many parties intending to exploit it.
In this case, the Angry Birds games have created goodwill in each of the Angry Birds Characters. Businessmen, hoping for a boom in business, have thus resorted to chasing the ‘birds’. They believe that affixing the Angry Birds characters on their products will increase the sales of their products.
So how does one go about using the characters on their products, then? The ethical way for an interested party to utilize the characters, is by first contacting the owner/creator of Angry Birds, conducting a business negotiation, and upon reaching a deal, make a written version of the deal under a license agreement, to pay the agreed amount of royalty. That’s it! Seems quite simple, doesn’t it?
But business is never so simple, business is full of intrigue. Some people follow the rules, and some break them.
Just like in other countries around the world, the Angry Birds craze has reached a fever pitch in Indonesia. It is no wonder that Indonesian businessmen are beginning to believe that using Angry Bird characters on their products will attract more customers. Angry Birds characters can be seen on products from T-shirts to snacks, stationery, shoes, socks, and helmets. All you need to do is enter any supermarket or hypermarket in the country and you’ll easily spot a product with an Angry Birds character.
But evidently, increased popularity or goodwill does not always equate to increased revenue, which was what Angry Birds owner, Rovio Entertainment, found out the hard way, when they became aware that many parties were illegally utilizing their intellectual assets.
Through their Indonesian representative, Rovio recently published Warning Notices in the national newspapers, listing the official licensed manufacturers of Angry Birds merchandise. It was interesting to note that although it was a Warning Notice, there was no overt pressure or specific immediate sanctions.
Curious to know the trademark protection status of Angry Birds in Indonesia, we found, through a simple search at the Indonesian Trademark Office, that Angry Birds and the characters related to Angry Birds have not been registered as trademarks in Indonesia yet. The owner of Angry Birds filed 3 applications of Angry Birds in several classes in 2011, and none of the applications have matured thus far. There were also 6 other applications of Angry Birds filed by local parties.
This would explain the lack of pressure or clear sanctions in the Warning Notices, as without a registered trademark, Rovio does not have the legal standing to sue for trademark infringement against illegal parties who are exploiting the Angry Birds characters without permission. Rovio’s only recourse is to rely on the Unfair Competition provision in the Indonesia Penal Code. However Unfair Competition is notoriously difficult to establish. Even if Unfair Competition is established, the Penal Code provides such an inadequate compensation (maximum 16 months imprisonment or a fine up to a maximum amount of Rp 13,500) that its bark is worse than its bite. In comparison, a person who is found to have committed trademark infringement (selling counterfeit goods) can be imprisoned for up to 5 years and fined up to a maximum amount of Rp 1 billion. As Rovio’s hands are somewhat tied in this situation, it has little choice but to wait for its mark to be registered before taking any effective legal action required to preserve its rights.
What we can learn from this Angry Birds case in Indonesia is that filing trademark protection for the trademark, logo, or characters on your products is extremely important. Don’t wait until your trademark, logo, or characters become popular. The next step after creating it is protecting it. Any delay in protecting it will only create more damage and problems.
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