The History of the Bad Decision Bear
The Bad Decision Bear is believed to have been conceived by a small band of San Diego Hashers sometime during 2011. The “Bad Decision Bear” was inspired by the characters from the Broadway musical “Avenue Q”, “Bad Idea Bears” and modified from the phrase that Breana McGowan used to say, “My mouth tastes like bad decisions”. This was followed up at some point by the coining of the phrase: “What Would Bad Decision Bear Do?” as a humorous metaphor to rationalize late night behavior that usually resulted in a hang-over the next morning.
This concept was initially manifested in physical form by Leigh DeFreece when she created the original Bad Decision Bear wristbands for my birthday in August of 2012. As a birthday gift, she made a single leather WWBDBD? wristband for me to wear and a set of fifty brown rubber wristbands for me to distribute as shared birthday gifts at the California Larrikins Hash camp out which happened over my birthday weekend that year.
The original wristbands proved to be very popular, so I created a second version of black, rubber Bad Decision Bear wristbands to use as souvenirs which were given away to the participants of a Mexican Mardi Gras Hash event that happened in Ensenada, Mexico in the spring of 2013. I made an additional one hundred and fifty of those wristbands to freely distribute throughout the Hashing and Burning Man communities in both 2013 and 2104; in particular throughout California, Las Vegas and the Phoenix Hashing groups. As the word spread about the Bad Decision Bear, the demand for these wristbands only increased.
The Bad Decision Bear continued to grow in popularity and has been used in many other subsequent applications, including a Bad Decision Bear group on Facebook as a way to spread its use and popularity, a “Build a Bad Decision Bear Workshop” that happened at the Burning Man festival in August of 2013 and countless other applications of its use on clothing, hats, sunglasses, pasties, necklaces and other apparel.
Drawings of Bad Decision Bear characters were created by my little brother, Alex McHenry in the summer of 2013, though they were only ever used for personal items. At no point did the creators of the Bad Decision Bear ever expect any remuneration for its use or require credit for its creation, as it was truly intended to be a shared and open source model for the encouragement of its creative use.
The History of this Trademark Protest
In the the Spring of 2015, it was brought to my attention that an application to trademark the Bad Decision Bear had been filed by Jon Gross and the corporation, Grosstech LLC, that he also specifically created around the same time to be the owner of the trademark. This did not sit too well with me, since Jon had nothing to do with the creation of the Bad Decision Bear, however, when I subsequently questioned him about it, his response was that “he intended to secure the rights to the Bad Decision Bear in a trademark because we have a lot invested in some things and we want to make sure that we can retain the rights for years to come”.
While he was obviously looking to make some money from its use, it seemed to me that he was also being sincere in protecting the Bad Decision Bear rights for others to use, so I did not attempt to fight his application with the USPTO. He also asked if I wanted to be involved in his LLC corporation, but I turned it down and only asked for some kind of letter to allow me to continue using the Bad Decision Bear as I always had used it before; unfortunately, he never sent me a letter.
Around that same time in 2015, I was introduced to Todd Peden, a Phoenix area Hasher that created and markets a drinking game within the Hashing community. As a result of the growing popularity of the “Bad Decision Bear” throughout the southwestern Hashing community, I am guessing that Todd had noticed how popular it was and decided to incorporate it within his game without ever checking to see if he needed permission to use it in a money-making venture. In fact, I was further told that he was also claiming to have been the creator of the Bad Decision Bear or at least letting others believe that he was; but nothing could be further from the truth.
Upon learning that I was one of the original creators of the Bad Decision Bear concept, he asked if I minded it being used in his game. I told him that we liked to encourage its use in creative endeavors, but that it was really never meant to be owned by someone specifically for their personal profit. He has subsequently created other items of apparel that he has been selling around the Hashing community which display the Bad Decision Bear logo and is intending to continue doing so as a way to further market his game.
A few months later, I learned that Todd had retained an Intellectual Property attorney to file three applications with the USPTO to claim ownership of the Bad Decision Bear, including any use on any apparel and for a drawing that he had created in 2015 that is somewhat similar to the drawings created by my little brother two years prior. Jon Gross had also told me that he had been contacted by Todd’s lawyer inquiring about his original trademark application and asked me if I had any documentation of its use from previous years, which of course I did. I figured he would need it as proof of first use in commerce in order to fight off Todd’s applications, but I never heard anything from Jon about it from that point forward.
As of this past January, it would appear that Jon has negotiated some kind of agreement with Todd and has since abandoned his original trademark application, which opens the door for Todd’s applications to be considered by the USPTO. This does not really seem like a great way to “secure the rights for years to come” by negotiating them away for someone else to own.
Neither Jon nor Todd were original creators of the Bad Decision Bear but are trying to capitalize on its popularity for their own personal gain. I have already filed three official letters of protest with the USPTO in an attempt to block Todd’s trademark applications and will file an opposition when the applications are officially published. Personally, I think that trying to claim ownership of someone else’s creative effort is quite a shady thing to do; particularly to fellow members of the Hashing/Burner community. I am sure that Todd wouldn't appreciate someone selling a replicated version of his game for their own profit, so I don’t really understand why he thinks it is acceptable to rip-off the creative efforts of others.