King.com’s Candy Crush Saga was the top free game—and top grossing game—in Apple’s App Store in 2013, so it makes sense for the company to protect its investment. Too bad it's descended to the legal equivalent of bullying.
King filed a claim to the word “candy” as it pertains to video games and, for some reason, clothing, last February; the U.S. trademark office approved it on January 15. Now developers are coming forward claiming that King has demanded they remove their apps from online app stores because their names include the word “Candy” in the title and thus infringe upon King’s trademark.
When Benny Hsu, maker of All Candy Casino Slots—"Candy Slots” for short—received a letter from King asking him to remove his app, Hsu originally assumed there was some mistake. But when he called King’s IP paralegal Sophie Hallstrom, he was told that:
use of CANDY SLOTS … uses our CANDY trademark exactly, for identical goods, which amounts to trade mark infringement and is likely to lead to consumer confusion and damage to our brand.
Hallstrom even noted that the addition of the word “SLOTS” would do nothing “to lessen the likelihood of confusion."
It's Good To Be The King
King.com, which employs more than 550 people and earns more than $700,000 a day, is worth billions of dollars. Furthermore, as Polygon is apt to point out, the company's claim to the word "candy" has not yet been validated—that only takes place after a 30-day period (which we're currently in) where any third-party can object to the registration. And even if King wins the trademark for "candy," not all references would be off-limits for other companies, and there's no guarantee King would win every court battle under trademark law.
So why is King being so aggressive and threatening towards these tiny startups?
King defended itself on Wednesday after the company took fire on the Internet for claiming that a game called The Banner Saga, developed by a three-man team that successfully Kickstarted itself in 2012, was “confusingly and deceptively similar to [King’s] previously used Saga marks”:
King has not and is not trying to stop Banner Saga from using its name. We do not have any concerns that Banner Saga is trying build on our brand or our content. However, like any prudent company, we need to take all appropriate steps to protect our IP, both now and in the future.
In this case, that means preserving our ability to enforce our rights in cases where other developers may try to use the Saga mark in a way which infringes our IP rights and causes player confusion. If we had not opposed Banner Saga's trade mark application, it would be much easier for real copy cats to argue that their use of “Saga” was legitimate. This is an important issue for King because we already have a series of games where “Saga” is key to the brand which our players associate with a King game; Candy Crush Saga, Bubble Witch Saga, Pet Rescue Saga, Farm Heroes Saga and so on. All of these titles have already faced substantive trademark and copyright issues with clones.
Use It Or Lose It
King’s explanation might sound silly at first when you consider how Banner Saga and Candy Crush Saga are simply using a word that already exists in the dictionary (“saga”). But there's some legitimacy to King's legal parrying: With trademarks, if you don't use them, you stand to lose them.
Trademark law says companies' rights to marks must be maintained through actual lawful use of the trademark, and if it's not used or enforced in cases of infringement, the owner could be removed from the register on the grounds of "non-use." Owners like King aren't required to always take action against all infringement cases if it's proven to be "minor" or "inconsequential," but generally trademark owners are compelled to defend their marks, especially when others in the same industry are attempting to capitalize on their popularity.
Jas Purewell, an interactive entertainment lawyer, tried to inject some sense into King's situation in a Gamasutra blog post by likening King's position on Candy Crush Saga with that of another popular iOS game, Clash Of Clans:
We’ve all seen games online that like to flirt with, or zoom past, the line between homage and copy.... Five minutes on the iOS App Store or online will show you games like Clash of Zombies, Clash of Factions, Amazing Clan War and so forth. Now, most of these games look very similar to Clash of Clans and have similar gameplay, but my point here is the similarity of the NAME.
Then you have other games, which might not have such a direct name relationship to other, more successful games, but they use the name of those successful games as part of a discovery optimization strategy (e.g. using "Clash of Clans" or "Candy Crush Saga" as keywords to make their own game appear more highly in searches).
In all these cases, a game which may look like it only has some or a passing resemblance to a trademarked game actually has a lot more in common with it than it might first seem. They are using the hardwon success of other developers to try to leapfrog ahead.
A King spokesperson told me the company objected to the Candy Slots app for the exact reason Purewell referenced with his Clash Of Clans analogy: King called Benny Hsu's app "a calculated attempt to use other companies' IP to enhance its own games, through means such as search rankings."
But the King spokesperson also clarified that its trademarking of "candy" was in response to infringing and confusing apps, and that the company is not enforcing all uses of the word 'candy' or asking app developers that use the term legitimately to stop doing so.
King may be big and rich, but it's uniquely dependent on Candy Crush—which is not very original in its own right, mind you—for its success. Candy Crush Saga is basically what Angry Birds is to Rovio, but without any memorable characters or defining style; therefore, the only recognizable aspect of Candy Crush is its name.
In this regard, it makes sense King would want to defend its most recognizable title. But that still doesn't explain why King is handling this trademark situation the way it is, threatening smaller startups with legal action as opposed to a more nuanced and diplomatic strategy.
Lead image via King.com