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You can’t own the word “candy,” can you? Given the media flurry just a few short weeks ago, it seemed as though King.com Limited attempted to do just that. Their attempts to secure new federal trademark registrations and protect their existing ones spread through the tech media like a celebrity scandal through the gossip blogs.
Though their actions might seem dubious to media commentators, King.com merely acted to protect its intellectual property. Yet when another company acted towards King.com in a manner similar to how King.com acted towards others, commentators again came out against King.com.
Why?
It’s easy to see surface details and draw conclusions against large, well-funded companies. But when we peel away the layers, we can get to the heart of the matter. In this case, the truth paints King.com in a much more favorable light.
The saga about “SAGA”
Candy Crush Saga might be its flagship title, but it is not King.com’s first. Before that it published more than a dozen games, many of which used the word “saga” in their names. In 2011, before it even released Candy Crush Saga, King.com filed trademark applications for many of its saga-based games, including Bubble Saga, Bubble Witch Saga, Mahjong Saga, Puzzle Saga, and more.
The Banner Saga, a game from developer Stoic, has almost nothing in common with King.com’s stable. It is a PC- and Mac-based game, while King.com creates mobile and Facebook games. So why would King.com object to Stoic’s trademark application for “THE BANNER SAGA”?
It’s all about branding.
King.com CEO Riccardo Zacconi explained his company’s stance on trademarks: “We’re not trying to stop Stoic from using the word ‘Saga,’ but we had to oppose their application to preserve our own ability to protect our own games,” he wrote. “Otherwise, it would be much easier for future copycats to argue that use of the word ‘Saga’ — when related to games — is fair play.”
Despite this perfectly valid rationale, popular media lashed out at King.com. Many commentators excoriated King.com for creating a “monopoly” over the words “saga” and “candy”. Reports even surfaced that King.com and Apple ordered the takedown of several App Store titles that used the word “candy”.
This seems sensational, but consider that:
- King.com never demanded, nor will ever demand (as we later learned), that Stoic cease publishing The Banner Saga
- Owning a trademark does not bestow King.com a monopoly over the words contained in the trademark
- King and Apple sent takedown notices to only a small number of apps, two of which used the words “candy crush” in their titles (the others, King.com claims, make use of the word “candy” to confuse consumers)
As happens with many trademark objections, King.com and Stoic settled out of court, – a fact completely overlooked by outlets that criticized King.com from the start, despite a notice on every page of Stoic’s website.
Again, King.com sought nothing but the fullest protection of its trademark rights. Yet when another party made a similar move against King.com, the media sided with the other party.
Objection to “CANDY”
In the case of The Banner Saga, King.com filed an opposition to Stoic’s trademark application. So if a party objected to King.com’s trademark application for “CANDY CRUSH SAGA”, then the media should rightly rail against that objection.
In this case, the exact opposite happened.
Albert Ransom, owner of Runsome Apps, moved to protect his intellectual property when he objected to King.com’s trademark application for “CANDY CRUSH SAGA”. Two years before King.com released its flagship title, Runsome Apps released Candy Swipe, which Ransom later successfully trademarked.
In practice there is no difference between Ransom’s objection to King.com’s trademark application and King.com’s objection to Stoic’s trademark application. In both cases the parties objected in order to protect their intellectual properties.
Ransom drew attention to the case in early February, when he published an open letter on his website, which sarcastically congratulated King.com on its victory in their dispute. But how had King.com prevailed, despite Ransom’s superior rights?
King.com acquired rights superior to Ransom’s. It found a game called Candy Crusher, which pre-dated CandySwipe. King.com then purchased the rights to the game and re-filed a trademark application, claiming first use in commerce in 2004.
In the letter, Ransom said: “I have learned that you now want to cancel my CandySwipe trademark so that I don’t have the right to use my own game’s name.” Even if King.com’s application for “CANDY CRUSHER” is approved and it does indeed move to cancel Ransom’s trademark for “CANDYSWIPE”, that does not necessarily take away Ransom’s rights to use the name CandySwipe on his game.
While purchasing the rights to an older game might seem like an uncouth tactic, nothing prevents King.com from doing it. Another point, which has gone mostly unnoticed: this matter is still pending. King.com has merely applied for trademark protection for Candy Crusher. Yet the owners of Candy Crusher did nothing to protect their trademark rights when Ransom filed his application for CandySwipe. It is no guarantee that the U.S. Patent & Trademark Office (USPTO) sides with King.com in this case.
A sign of things to come?
As the library of mobile games grows, so will copycats. Original developers must do everything in their power to protect their intellectual property. This is not only from a content standpoint, but also from a trademark standpoint. A copycat game with a confusingly similar title can lure unsuspecting consumers and cost the original developer significant revenue.
While some criticisms of King.com’s tactics are legitimate, many misunderstand the nature of trademark proceedings. In these cases, no one has sued anyone. Trademark owners have merely filed objections with the USPTO. The filing of an objection does not mean that the objecting party will prevail.
Mobile game developers must now conduct voluminous research before naming and releasing their titles. They can run afoul not only of registered trademarks, but of common law trademarks. (As we saw with the odd case of Flappy Bird.) In order to avoid the headaches that King.com, Stoic, and Runsome have suffered, developers need distinct marks that no consumer would confuse with another app. Of course, saying it is easier than doing it.
We might not have even seen the end of King.com’s trademark saga. In late March they filed an objection to the CJ Games Global Corp trademark application for “ARCANE SAGA”. They also have a pending objection against the game Candy Pang!, which is currently ongoing.