Over the past few days, there has been a flurry of discussion in the Asian American social media community about the conflict between Phil Yu (of Angry Asian Man fame) and Lela Lee (of Angry Little Asian Girl). Essentially, it’s a trademark use dispute that has now become public since the respective parties have both been blogging about it. Because each blogger has a notable audience in their own right, this has also caused some division in the Asian American community over who is right/wrong. However, many of these discussions have a very limited understanding of trademark law, and as such, a lot of misinformation is being shared.
Two of the best posts about the matter have been from Jenn Fang (of Reappropriate) and Jeff Yang (of a whole bunch of Asian stuff). Other than a few minor clarifications on the legal portions, I wouldn’t add much else – both articulate the issue quite well and present a fair analysis of the ethical and community-wide implications involved. If you need some background on the issue first, I would definitely begin by reading their articles.
While I’m not an IP attorney myself, I do have pretty significant experience with trademark law due to my work as a music entrepreneur as well as my personal case against the United States Trademark Office (I suppose I’m an angry Asian of a different sort). So let’s clear up some of the confusion around the issue…
1. The Difference Between a Trademark, a Trademark Registration, and a Copyright
First things first: No copyrights are in contention. A copyright is provided to authors of “original works of authorship” (articles, books, songs, photos, and so on). A trademark is a word, name, symbol or device which is to indicate the source of the goods and to distinguish them from the goods of others. Also, as my trademark attorney would declare, “trademark is not a verb.” In other words, one does not “trademark” a name, such as “Angry Asian.” One earns a trademark through use. One does not have to register a trademark, but there are certain advantages and benefits for doing so.
2. Likelihood of Confusion
In 1998, Lela Lee registered the trademark for “Little Angry Asian Girl” for comics and cartoon strips. She later expanded that use later on with the intention of covering other goods and services. Phil Yu applied to register his trademark for “Angry Asian Man” but was denied registration on the basis that it was too similar to “Angry Little Asian Girl,” which could cause confusion among consumers. However, there is no uniform standard to determine what crosses the line of something being too similar – that is up to the subjective opinion of the examining attorney. That decision can be appealed (and often is).
The trademark registrant can argue that the marks are too similar by proving consumers in fact have been confused by the similarities in terms of their trade names, products, or services. “Apple” is a registered trademark of Apple Corps for musical sounds, not to be confused with the registered trademark of “Apple” belonging to Apple, Inc. Because their services are different, both can hold a trademark registration (though they did have some major conflicts when Apple Inc. originally was launching into music sales through iTunes).
So in answer to Jenn Fang’s question, “Isn’t the internet big enough for more than one “Angry Asian”?,” yes, there can be if there are enough differences or if the US Trademark Office doesn’t think that the two items are so similar that consumers would get confused. Is “Angry Little Asian Girl” distinctive enough from “Angry Asian Man?” Lela doesn’t think so, Phil does. The court has yet to decide (only an examining attorney has said it was). Furthermore, as the registration holder, Lela has several options available.
3. The Duties of the Trademark Registrant – and What Options Are Available
In Jeff Yang’s piece, he states that Lela has a “right and responsibility [to defend her trademark] (you lose trademark protection if you don’t defend it).” While it is true that the owner of a trademark registration is responsible for defending their trademark (which may include monitoring trademark registration applications for similar marks, sending out cease and desist letters or misuse, and/or notifying others who have similar marks), it does not necessitate legal action. They’re also not responsible for uncovering all possible uses that may cause conflict – but they should be doing some work to keep their registration active.
Some of the possible courses of action include suing for monetary damages, injunctive relief, a trademark license agreement, coexistence agreement or settlement agreement. Yang argues that Lela should grant Phil a license for “Angry Asian America.” It’s a good compromise, though the crux of Phil’s branding built over 14 years hasn’t been on “Angry Asian America,” but “Angry Asian Man.” Lela could offer a coexistence or settlement agreement that would allow Phil to continue the use of “Angry Asian Man” with a disclaimer that it is distinctly different than “Angry Little Asian Girl.”
4. There Might Be Trademark Dilution
Some might argue that the continued use of “Angry Asian Man” dilutes the use of “Angry Little Asian Girl” (and that this can be a legal position she could take). Unlike traditional trademark infringement, neither likelihood of confusion, nor competition between the parties’ goods is required – however, this only applies to strong marks, which is why it is acceptable to parody strongly recognized marks. However, “famous” or “strong” marks are somewhat subject to opinion.
Trademark Registration Reform
Aside from the conflicts within the Asian American community, this conflict demonstrates the highly complex and confusing world of trademark law, one that is often based on subjective opinions. Trademark laws were designed to protect consumers so that they can make informed decisions and not be confused into buying deceptively similar goods or services. They also help “assure a producer that it (and not an imitating competitor) will reap the financial, reputation-related rewards associated with a desirable product.” Qualitex Co. v. Jacobson Products Co, U.S. Supreme Court (1995).
The “Angry Asian Man” vs, “Angry Little Asian Girl” is as much of an ethical debate as a legal one. The Asian American community is highly vested in both, as both represent significant work in their respective areas. That much is incontestable – which is why there has been so much emotional turmoil over it. No matter what happens legally, it is my hope that both Phil and Lela are able to continue their great work without it suffering – in which case, we all lose out. Hopefully, this at least clears up some of the confusion on the legal aspects of the situation.