A classic David vs Goliath as the tech behemoth battles it out with the small tech start-up for the name of a new emoji avatar app.
SAGINAW, MI, UNITED STATES, February 6, 2019 — Melania Trump has cited bullying as one of the issues she’s using her first lady platform to battle. Most Americans understand the inherent unfairness and devastating effects of bullying. 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 seems to be obviously frivolous and shoddy 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.
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, or much, much worse!
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.
This 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 olds 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”!
So 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.
And this is where the dramatic difference begins. 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. 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.
So to even further skew the norms, we have decided to pit our CEO versus their “top notch” Intellectual Property firm in the Trademark Trial & Appeals Board proceedings.
Prepare for a no-holds-barred very public dispute. We will expose Snap for the bullies we believe them to be.