Flappy Bird’s Legal Green Pipes

Much to the delight of the app-gaming community, Dong Nguyen, the creator and designer of “Flappy Bird”, announced via Twitter on March 19th that the game will return to the app market, although “not soon”.  It had been suggested that he had been threatened with legal action for violating Nintendo’s intellectual property rights, including the “Cheep Cheep” character and green pipes from the Nintendo’s Mario series of games, which led to the removal of the popular game (subsequently denied by both Nguyen and Nintendo).  Nguyen maintained that while these elements served as inspiration for “Flappy Bird”, he ultimately removed the game for becoming too addictive.

When it re-enters the market, “Flappy Bird” will likely face two legal obstacles: 1) trademark infringement based on copycat games and naming rights; and 2) trade dress and “passing off” issues, especially as they apply to the aforementioned green pipes and “Cheep Cheep” character, given the track record and fame of Nintendo’s franchises.

One challenge it will most certainly encounter upon re-entering the market is competing with these clones the game itself inspired.  It is not the first game to encounter success followed by imitation and will likely not be the last, as similar claims are familiar to both the mobile app and home console markets.  In its absence, gamers have flocked to the app store to download various clone apps to satisfy their cravings.  Developers have responded to this need, submitting another knockoff of Flappy Bird every twenty-four minutes to Apple’s app store.  Similarly-named versions “Splashy Fish,” “Hoppy Frog” and “Fly Birdie” attempted to capitalize on the game’s popularity.  Versions featuring Kanye West and Justin Bieber have even appeared in the market (seriously).

Imitation is nothing new to the video game market, and often comes from independent developers, looking to cash in on the success and popularity of previous games.  Developers of classics such as “Tetris”, “Pac-Man” and “Karate Champ” have all had their day in court to protect the original expressions of their games.  On February 4th, 2013, the developers of the classic “Tetris” won their lawsuit filed in 2009 against Xio Interactive, Inc., for the copyright and trade dress infringement of Xio’s “Mino” game.  While Mino’s developers admitted they were inspired by “Tetris” (and its profitability in the app market), they argued that they merely copied the unprotected aspects of the game.  However, the court ruled that Xio unlawfully and wholly copied “Tetris”, showing side-by-side comparisons of the games, while distinguishing how developers still remain capable of expressing similar concepts in a unique way even with the court’s holding, as done successfully by Dr. Mario in the 90s.  Gameloft is one such developer that has succeeded in this manner,  as they continue to release mobile game versions of its “N.O.V.A.” series, which some argue infringe on the elements of similar console games, specifically Bungie’s “HALO” of Xbox fame.  Even larger and established game developers are not immune from lawsuits.  Also in February of 2013, Electronic Arts (EA) and social gaming heavyweight Zynga (of “FarmVille” fame) reached a settlement based on Zynga’s “The Ville” and claims that it ripped off EA’s “The Sims Social” game.  Had the parties not reached a settlement, it could have resulted in a precedent that redefined the market and costs associated in creating videogames, for mobile and console, large companies and independent developers alike.

Copycats are not the only obstacles “Flappy Bird” must dodge upon its re-release, as naming rights will almost certainly be a matter of future litigation between Nguyen and numerous developers who have rushed to fill the void “Flappy Bird” left.  Since its removal, Mobile Media Partners registered the “Flappy Bird” name hours after it was deleted, and Ultimate Arcade, Inc. is attempting to trademark the term “flappy” as well as enforce it by alleging infringement against other developers who use the term in their games’ titles.  “Flappy Wings,” “Flappy Bee” and “Flappy Plane” are other clone apps which have mimicked the “Flappy Bird’s” gameplay since its disappearance.

Issues over naming rights have been similarly resolved, as developers prefer that infringing elements such as titles and characters are changed, without seeing these lawsuits through to their expensive conclusions.  In 2011, “Doodle Jump” creators Lima Sky withdrew their infringement claims, having filed complaints only after competitors using “Doodle” in their titles attempted to trademark the term.  “Stick Cricket” creators Stick Sports filed similar claims on grounds of “passing off” and trademark infringement against developers who also used the term “Stick” in their game titles that resulted in their removal from app markets, a case that highlights even more potential legal complexity when considering the international market for these games.  An exact recent example of this is “Candy Crush” developer King, who recently abandoned their trademark application for the term “candy” here in the U.S. while concurrently defending their valid trademark in the European Union against ZeptoLab, the creator of the “Cut the Rope” franchise.

In addition to new competition, despite previous reports and comments to the contrary, “Flappy Bird” may well have its own intellectual property conflict with Nintendo whenever it does return.  As analyzed in the Tetris case, game elements must be inherently distinctive and unlikely to cause confusion to receive trade dress protection.  In this instance, Nintendo would have to show that use of the green pipes, “Cheep Cheep” character and background sprites are unusual and memorable, separable from the product and indicate that any product involving those originates with Nintendo.  This could pose quite the problem for “Flappy Bird” should Nintendo meet that standard, as the green pipes and “Cheep Cheep” character are elements that have been repeated in the uber-popular Mario franchise throughout its history since the first Super Mario Bros.” was released on the NES.  The use of such features by Nguyen could lead to a ruling that their inclusion confuses gamers into thinking that “Flappy Bird” is a Nintendo-related title.  Such a determination would then hold those green pipes and similarly-used Nintendo items are worthy of protection, as well as subjecting their reproduction by Nguyen to the aforementioned “passing off,” in that “Flappy Bird” misrepresents itself as a Nintendo-produced entry into the app market.

Whenever “Flappy Bird” hits the skies again, flying between those green pipes may prove easier than navigating the challenges Nguyen and other game developers face in today’s legal landscape.

About Thomas Ludan

Thomas Ludan is an official contributor to Law of the Game. He is an attorney in Miami, Florida and currently licensed to practice in both Florida and Wisconsin. As a recent graduate of Florida Coastal, he is an active member of the Intellectual Property and International Law sections of the Florida Bar, Wisconsin Bar and ABA. The opinions expressed in his columns are his own. Reach him at Thomas[dawt]Ludan[aat]gmail[dawt]com.

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