Small Tech Startup Accuses Snap of Being Trademark Bully; Asks the USPTO to take Unprecedented Action.
SAGINAW, MICHIGAN, UNITED STATES, February 25, 2019 — After Snap Inc filed opposition to the Badmoji trademark in January this year, Hierographics Inc (the creators of Badmoji) has declined legal representation and placed bets on their CEO presenting their case to overcome the multi-billion dollar tech giant’s attempt to stifle them.
Being a small startup with finite resources, upon discovering Snap’s opposition even before the launch of their app, Hierographics was forced to temporarily rebrand Badmoji to BadEgo in order to prevent Snap from the possibility of taking further legal action and allow their app to be brought to the public for testing and further development.
“That’s what this stage of a startup is about,” explains Andrew Lay, CEO of Hierographics Inc. “Getting our product to the public so we can get the feedback we need to improve; and we have a lot of great feedback and appreciate the outpouring of support for an app idea like ours. It is genuinely rewarding for the effort we’ve put in. We have some huge updates coming soon!”
“We won’t be intimidated by bullies,” he continues. “We are confident we will prevail and affirm our rights to the Badmoji name. In belief of those rights, and due to the limited free speech available on the App Store and Google Play, we have moved our more controversial content to a web app at Bigbadmoji.com, or if that’s too much, check out the ‘cleaner’ (but still bad) version at www.BadEgo.app.”
Lay says his company’s case is strong, and details some of the argument in his answer:
- There are over 100 live trademarks with ‘moji’ in them, plus given the fact that moji by itself is trademarked by over a half dozen different companies, gives Snap no right to anything just by including ‘moji’.
- The Badmoji content goes where the Bitmoji content won’t, in fact, Bitmoji targets children 12+, while Badmoji prohibits them, requiring users to be 18+.
- The apps have totally different art, branding, icons and general appearance, leaving no room for confusion.
- The prefixes Bit and Bad are distinctly recognizable and not confusing. In fact, our society generally expects 4-year old children to differentiate similar words next to each other, such as the common phrase and fairy tale with the “big bad wolf.”
- There are dozens of other applications, that are also avatar expression apps, within Bitmoji’s purview of content, and many of them contain the word ‘moji’ within them.
- Snap claims the objectionable similarity of the names that would cause confusion can be summed up as: “…mark incorporates the identical MOJI suffix with a leading three letter, one syllable prefix starting with “B”. Only two letters separate the marks at issue.” Yet other avatar expression apps, within the same purview of content as Bitmoji, exist with over 5 million downloads on Google Play, such as Boomoji.
Lay goes a step further than asking the Trademark Trial and Appeals board to reject Snap’s opposition in his prayer for judgement. His filing states that he: “…prays the United States Trademark and Patent Office, in their next report to Congress, will request additional jurisdictional powers to assist those with little economic voices with punitive judgements against those taking actions that could be deemed ‘Trademark Bullies’, in the most honorable pursuit of truth and justice.”
“How do you make things better for the next potential victim in similar or worse position?” Lay asks “I don’t know that they can technically do what I’ve asked them to do, but if the United States Trademark and Patent Office submits regular reports to Congress, I think it’s important that they ask for the authority to deal with a problem they have admitted exists. I think it’s beyond time for the those that abuse these laws to be called out.”
Hierographic’s answer to Snap’s Opposition can be found on the Trademark Trials and Appeals Board web site: