Like Taking Candy From a Company
Candy Crush Saga Trademark Tactics Not so “Sweet!”
The internet has exploded over casual game developer, King Digital Entertainment Plc. (King) in response to recent actions regarding enforcement of their trademarks. King is the developer responsible for over 180 casual games, including most notably the game that should sit alongside heroin on the DEA Schedule 1 list, “Candy Crush Saga.”
King recently trademarked the words “candy” and “saga” in Europe and the United States. They claim the move was to protect their intellectual property and allow them to legally pursue the developers of copycat games who use similar words, concepts and images to fool consumers into purchasing the wrong product.
This move has led to some bizarre litigation that has many up in arms. King has filed a vast number of lawsuits, but two have received the most attention.
The first act of this legal drama unfolded when King opposed Stoic Studios’ attempt to register a trademark for their recent release, “The Banner Saga.”
“The Banner Saga” is a Viking-themed strategy game that in no way resembles the “Candy Crush Saga.” The basis for King’s opposition to the trademark application is the use of the word “saga.” Several of King’s most profitable games contain the word “saga” in their titles, and King is objecting on the grounds of possible confusion.
While it seems unlikely that anyone would confuse the two games, King is well within their rights to oppose the trademark application. In fact, they are required to raise litigation in any circumstance like this.
A crash course in trademark and copyright law explains why.
Once something has been trademarked it means that an individual or company has claimed the use of that word or phrase in relation to a specific industry. Five years later, if that trademark is still in use, it becomes registered.
Registration includes the assumption that the public will automatically associate that word or phrase with that particular use. For example, if someone says “Apple” in reference to electronics, everyone knows that they don’t mean fruit.
In the first five years of a trademark, if the owner allows someone to use their trademark, this weakens their claim. By coming down hard on anyone using the words “candy” or “saga” in games, King is enforcing the connections of those words to their brand and discouraging further litigation.
“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 games. Otherwise, it would be much easier for future copycats to argue that use of the word “saga” when related to games was fair play,” King stated in an open letter on intellectual property.
This does not mean that “The Banner Saga” will have to change their name. According to Greg Collins, a lawyer who provided some legal insight in an article on Kotaku.com, “Trademark owners enter into coexistence agreements all the time. These agreements set the boundaries for each side’s use of their chosen trade names.” Although it is still pending, this may be the outcome for this piece of litigation.
Once placed in context, King’s objections seem reasonable. However, in more recent legal battles, the ethical waters become a veritable swamp.
Runsome Apps Inc., creator of the game “CandySwipe,” was involved in litigation with King for most of 2013. “CandySwipe” was created and trademarked in 2010. When King applied for their trademark in 2012, Runsome Apps objected on the grounds of “likelihood of confusion.”
In an open letter to King, Albert Ransom, founder of Runsome Apps, pointed out the similarities between “CandySwipe” and “Candy Crush Saga,” which was created almost two years later.
Both are match-3 games in the style of “bejeweled,” using similar-looking pieces of candy as icons in the game and the exclamation “Sweet!” to encourage players.
Therefore, Ransom claimed that “Candy Crush Saga” is itself a copycat of his game.
Ransom also used the opportunity to assault King on the emotional battleground. He described how he created the game in memory of his late mother because of her fondness for those types of games. Upon winning the game, a dedication is displayed attesting to this fact. He goes on to say that the game is for “warmhearted people like her, and to help support my family, wife and two boys 10 and 4.”
Ransom further claimed in his letter that he has experienced “hundreds of instances” where players thought “Candyswipe” was a knockoff of “Candy Crush Saga,” or that the two are one in the same. He also stated that he has “been quiet, not to exploit the situation, hoping that both sides could agree on a peaceful resolution.”
Sadly, this was not to be.
The twist? Last month, King acquired the trademark rights to a game dating back to 2004, entitled “Candy Crusher.” Although the game bears no resemblance to either “CandySwipe” or “Candy Crush Saga,” the acquisition gives King a chronological advantage over Runsome Apps in the claim on the word “candy” in games.
With this new acquisition, King attempted to cancel the “CandySwipe” trademark, meaning Runsome Apps would no longer be able to oppose King’s trademark or legally use the “CandySwipe” name.
Ransom, unable to afford the costs of continued litigation, ceded in his open letter, stating “Good for you, you win. I hope you’re happy taking the food out of my family’s mouth…”
Every line of the letter was saturated in bitterness.
“Your move to buy a trademark for the sole purpose of getting away with infringing on the “CandySwipe” trademark and goodwill just sickens me,” Ransom said.
Everything King did was legal. They simply had more money to throw at the lawyers.
Ironically, in view of their own draconian trademark and copyright enforcements, King has been accused of plagiarism numerous times in the past. Many of their games copy the concept and gameplay of previous games, differing in presentation only just enough to avoid litigation.
A review for King’s “Papa Pear Saga” on Touch Arcade, claimed “Papa Pear Saga is pretty much an unashamed clone of “Peggle.””
“King’s overreaching filing in its application for the Trademark for its game ‘Candy Crush Saga,’ and its predatory efforts to apply that mark to each separate word contained in that name, are in opposition to the values of openness and cooperation we support industry wide,” the International Game Developers Association said.
A group of developers, angry over the situation, protested by holding a contest referred to as “Candy Jam.” Developers were encouraged to overflow app stores with candy-themed games. The contest ended Feb. 3, and resulted in over 450 new games, with titles such as “Candy Escape Goat Saga,” “Candy Puppet Saga” and “The Saga of Crushing Candy.”
While everything King did in this saga will stand up in a court of law, they seem to be getting crushed in the court of public opinion.
By David Thornton