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Let's talk sense about game trademarks
by Jas Purewal on 01/21/14 09:05:00 pm   Expert Blogs   Featured Blogs

The following blog post, unless otherwise noted, was written by a member of Gamasutra’s community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.

 

Jas Purewal is an interactive entertainment lawyer and author of leading gaming law blog Gamer/Law.  This post expresses his personal thoughts only.

The games press and sections of the games community has got hot under the collar (again) over trademark law.  This time around, it’s about news that King.com, maker of Candy Crush Saga and other games, is seeking to trademark ‘Candy’.  Cue lots of (to put it charitably) loose talk about ‘monopolies’ and even ‘patent trolling’ - much as there was regarding Games Workshop (with “Space Marine”) and Bethesda (with “The Elder Scrolls”) previously.  I’m going to try and talk some sense about this topic.

The bare essentials of trademark law:

Trademarks are a branch of IP law which protect the things which represent the brand of a business – its name, its logo, for a creative product like a game or film then potentially things like its characters’ names or other important game names.  Trademarks do not protect anything else about the underlying product, e.g. what the game’s like or its gameplay (that’s copyright law) or potentially how the product works (that’s patent law).  So, trademarks = the way in which you protect your business brand and how it’s referred to in the market.  For more on the basics of trademarks, read my post Demystifying Trademarks and Games.

Why get a trademark in the first place?  (1) to stop someone from misusing your brand or potentially even pretending to be you; (2) to build and protect value in your business (having the right trademarks are the kind of thing that financiers, investors and buyers of your business will expect to see; if you don’t have the right legal protections in place, it’s one fast way to finding the money you get is chipped down).

Enforcing trademarks:

Once you have a trademark, you have to enforce it or you risk losing it.  Put it another way, there’s no point going to all that expense and time to show the world that legally the trademark is associated with your business, if you then let anyone in the world make use of the trademark without consequence.  If you did, it wouldn’t really be a trademark for your business at all and would risk invalidation (which is what happened with the trademarks and patents the Hoover Corporation once had with Hoover vacuum machines).

So, that’s why we see legal issues around trademarks in the games industry from time to time.  The trademark holder writes to another developer, points out that the developer is misusing their trademark(s) and asks them to stop – usually by changing the name/logo that they’re misusing.  Or, sometimes, the trademark holder is willing to enter into a contract with the games developer so that they can  live side by side using the trademark without legal issue – this is called a “coexistence agreement”.

But isn’t this just an abuse of the system? What gives the trademark holder the right to tell people what to do?

This is the crux of the issue.  In a small minority of situations, there may be situations where Person A acquires a game trademark and then brings an action against Person’s B game which is unjust or inappropriate.  For example, Person B may have a totally different business to Person A, or they might have a similar business but Person B has been doing it longer.  For example, I register a game trademark but you’ve been using that game name for longer than me.  In this situation, there are already well established processes in place under the law in which folks affected by these issues can try to achieve redress.  At the very least, there are online resources (including my blog) which they can use to understand the issues.    Getting angry, or attacking the law for being the law, is no defence and it won’t help.

But much more importantly than that – how many situations have there actually been where this situation actually comes up – where a pre-existing game is harmed by a similar trademark being registered and then used to attack that earlier game (maliciously or not)?  I’m an IP expert in the games industry and I can tell you it comes up pretty seldom.  In part that’s because of the following reason….

Many innocent looking games in a trademark dispute aren’t that innocent.

We’ve all seen games online that like to flirt with, or zoom past, the line between homage and copy.  Let’s take a look at Clash of Clans for example. 5 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 optimisation 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.

That’s not ALWAYS the case of course and there have been grey areas where the similarity between game names can legitimately be debated (such as the Scrolls/Elder Scrolls litigation I mentioned earlier).

Which brings us to back to the start of the post:

The Forbes post I linked at the start has a good summary of the requests made by King to the developer of All Candy Casino Slots – Jewel Craze Connect: Big Blast Mania Land and the (I think very reasonable) comments that King made in response.  In particular:

“The particular App in this instance was called ‘Candy Casino Slots – Jewels Craze Connect: Big Blast Mania Land’, but its icon in the App store just says ‘Candy Slots’, focussing heavily on our trademark. As well as infringing our and other developer’s IP, use of keywords like this as an App name is also a clear breach of Apple’s terms of use. We believe this App name was a calculated attempt to use other companies’ IP to enhance its own games, through means such as search rankings”.

If that’s correct, it suggests that the developer of ACCS-JCC: BBML (since it’s rather tiresome to type the full name out more than once) is indeed in some murky territory from a trademark and Apple developer agreement perspective.  We haven’t had the developer’s response yet though.

Some final thoughts from Jas:

IP law and how it applies to the games industry is still evolving fast (that’s one big reason I write this blog) and there are a number of issues we don’t understand fully yet.  In those situations, it’s right that there should be a lively debate about how we want our games industry to develop, including what legal rights games developers should and shouldn’t have in their games.

But there is a lot we DO already understand about IP law and the games industry.  How trademarks work is one of those things.  I’d venture to suggest therefore that those sections of the games community who are up in arms about this latest trademark issue would probably benefit from taking some time to think things through, to try to understand how games businesses and the law actually works, rather than drawing rushed conclusions from little experience on the subject.  But then, that’s the Internet for you isn’t it?

Some FAQs in order to try to avert being flamed:

Isn’t Candy Crush Saga just a clone of XXX or YYY game?  What gives them the right therefore to take control of anything?

I’m going to avoid getting into one of those debates here about originality versus homage versus copying etc which come up occasionally in games, film and so forth (though for the record I think CCS is a brilliant, original game).  That’s not the point here.  King registered the trademarks (in the EU and the process is underway in the US), they are going properly through the trademark process, if anyone objects to their claims then they can go through the process too.  Anything else is just armchair lawyering, I'm afraid.

Why should anyone be able to register basic words like “Candy”?

It looks like King has already registered a trademark for the word "Candy" in the EU and its US application is still underway (they also have registrations completed or underway regarding other trademarks, including "Candy Crush" or "Saga"). Let's look into that for a second: does this mean the law is really as bad as some people have made out? 

As I talk about below, commonplace or purely descriptive words can't be trademarked except under certain conditions.  King clearly feel that "Candy" is sufficiently associated to their brand in relation to video games that they should have a trademark registration over it (and they are not the first video game company to make such a decision for an otherwise commonplace/descriptive game name).  This is being done under the trademark process with the available redress under it if people with a stake in the trademark application disagree.  As I explain in some detail in my trademarks and games guide, trademarks aren't a monopoly right: it's not like those irritating people who like to comment "first!" in a comment thread so that no one can beat them to it (I'm not sure if that's a completely apt analogy but I liked it and dammit this is my blog, so I put it in).  If someone trademarks e.g. "Mario" or "Clash" in relation to games, that doesn't make them the absolute controller of those words in a game name for all time and in all situations.  Trademark law gives them certain rights as it gives other people with an interest in using those marks certain rights.  If those interests come into collision, trademark law sets out remedies.   So that you can see this is grounded in reality rather than just me spouting platitudes about the law, read about Mojang and "Scrolls" versus Bethesda and "The Elder Scrolls". 

The ultimate fallback point though, the reason why this shouldn't be an issue for businesses that educate themselves about trademarks, is that trademarks are not a monopoly right.  The test for whether one game trademark infringes another is NOT 'does one of them have a trademark registration' but 'does one of them have a trademark registration AND are the infringement tests met too'.  Boiling that down even further, what we're really saying is 'are the two games confusingly similar'?  If you can make good arguments why consumers would know your game isn't made by the other guy or similar to his/her game, then that's a big step towards proving no infringement.  Conversely, if you have a trademark for a game name and it's obvious that the other guy is making a game that trades off your gameplay and brand, then the trademark will help in an infringement action.

One last thought on this: as an IP practitioner, I find that there can sometimes be issues with wide trademark registrations, where a client wants to register a name not only for their core business activity (e.g. making software or games or books) but for potentially several other categories of activities like merchandise or cleaning products.  You might be surprised to know that Rovio's "Angry Birds" trademark for example extends to cleaning products.  There's always a discussion between lawyer and client here: on the one hand, one doesn't want a registration so wide that it could be criticised for going too far or even be opposed and potentially invalidated.  On the other hand, if the business has ambitious plans in relation to the brand then it will want as much trademark coverage as possible. 

Hopefully that helps explain a little about what these kinds of applications actually mean.  I'm not passing any judgment myself on the rights or wrongs of the King.com situation - but hopefully this helps explain the reality a little.

Why can’t I register “Door” or “Game” or “Cat”?

Trademark offices won’t allow you to register completely commonplace or descriptive phrases which are part of the common language and have no association to your business.  UNLESS of course they do have a particular association to your business within certain fields of industry – Apple Inc for example with their name “Apple” and the apple logo.  Or, put it another way: generally commonplace phrases aren’t registrable unless they are  particularly tied to your business and you can show it.

Isn’t this just like patent trolling?

Erm, no.  Here’s a quick go to explain why.  First, read my guide to patents and games.  Second, read my guide to trademarks and games.  Then you’ll have a basic understanding of what patents and trademarks actually are and how they’re obtained.

For folks who don’t often deal with business and legal issues, I can understand how patent trolling might look similar to  ’trademark trolling’: a big bad business buys up patents/trademarks and then threatens to sue other businesses unless they pay a licence fee. That does happen in patents, but that’s in part because patents protect inventions and they can be traded back and forth and because, once you incorporate an invention which is patented into your product you’re kind of stuck already (since it’s usually quite hard to redesign the product by that point).

Trademarks however are intimately tied up with the brand of a business and with its products and therefore they are bought and sold far less often.  Even if they were bought and sold as often as patents, it”s a lot easier to just change your product name than it is to change the underlying patented technology in it – which means that licensing of trademarks would be less complicated and less expensive than for patents.

For all these reasons, I’m trying to say that trademark trolls don’t really exist, certainly not how patent trolls exist.

Isn’t this just like Tim Langdell and the Edge trademark? Isn’t he a trademark troll?

You can read my and my friend Jonny Mayner’s thoughts about that particular saga here.  Actually, Tim Langdell is a great example to prove my point about how the trademark system works. Tim Langdell claimed, for a long time, that he was the exclusive rights owner of the word “Edge” and an “Edge” logo in relation to games.  He even sued various people, including Future Publishing (publisher of Edge magazine) to protect those rights.  But actually the litigation determined that he wasn’t the exclusive owner of any Edge trademarks and that, even if he was, he hadn’t actually been using them.  Thus his attempts to wrest control of trademarks were defeated by the evidence of what he had and had not been doing with them in connection with his business.

To me, this demonstrates again the very real differences between patent and trademark infringement and show how the trademark system can be used as both a sword and a shield (to use legal language for a second) in the right circumstances to defeat unjust actions.

But what about the little guy?  What if he/she can’t afford big lawyers?

There is still a lot you can do:

- Read official resources (such as the USPTO or OHIM websites for US and EU) to understand what’s happening in your particular case.

- Get informal legal guidance, or even pro bono advice, from lawyers (including me).

- In particular, you need to take a cold hard look regarding whether you’re actually legally infringing someone’s trademark, or whether it’s them who are making the unjust claim, based on the relevant trademark rules.

- Get in contact with the person making claims against you, so that you can understand their concerns and try to reach an amicable resolution (in particular, whether you can reach a coexistence agreement with them if the situation warrants it).

Trademarks are a waste of time in games and/or I don’t care if people copy my name/logo/app.

Fair enough, you’re entitled to your view.  Hopefully if nothing else this post explains a little about how trademark law sees these issues.


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Comments


Sjors Jansen
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Hi Jas,

Would you like to comment on King bothering Stoic about the Banner Saga please?

Because you ask the question: "Isn’t this just like Tim Langdell and the Edge trademark? Isn’t he a trademark troll?", but never clearly answer how it is or isn't like that case.

So could you please explain, in the context of the Banner Saga, how this is different?

I would assume in this case Stoic could say: "Well it's an entirely different type of game, looks different, so therefore it does not confuse anybody." And thus should be done with it.

But still, isn't that just abuse or strong-arming or whatever legal term?

Would it be reasonable to expect a law that punishes abuse of trademark?
By for instance taking away the trademark and having it used against the owner, therefore being forced to change it's own brand. And never being allowed to make trademarks again.
(Because big bad companies probably won't care that much if they lose a Tim Langdell case, so bothering people seems the most profitable way to go.)
To me personally, it seems very unjust to be able to just blatantly harass everybody.

I definitely respect the cloning problem, it can be a serious issue like with Ridiculous fishing a while ago. But the distinction is a little vague.

Let's say I were to make a traditional rpg about a candy kingdom where you go on a long journey and become the candy king, and I would call it "Candy King Saga", an apt and fitting name. Would their trademark thingie hold up? (to use proper legal terms)

Thanks for the article!

p.s. for good order, a 1995 game, almost 20 years old, on which there have been numerous variations throughout the years:
http://en.wikipedia.org/wiki/Tetris_Attack

Jas Purewal
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Hi Sjors and thanks for commenting. I'm hesitant to comment on the Banner Saga development just yet because it is clearly a story still in motion. See King's comments so far at http://www.gamesindustry.biz/articles/2014-01-22-king-opposes-ban
ner-saga-trademark, which suggest that there is still some way to go in discussions between King and Stoic. I should just highlight though that King said exactly what I said in my post - once you have a trademark you must seek to enforce it, whether you like it or not, or risk losing it.

Think about it from the trademark holder's perspective: if you let slide what you think are the deserving exceptions to the rule, it can make it a lot harder to fight the undeserving cases, the people who really are ripping off your product. That's exactly what happened for Bethesda - they didn't WANT to sue Mojang, the darling of the indie world, but they felt they had no choice. It's an unfortunate legal dilemma to be in, but it happens.

Sjors Jansen
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Hi Jas,

fair enough. That will definitely result in more clarity.

Though I think it's also fair to say that in light of these recent events, like so many others (*cough*NSA*cough), they are saying one thing and doing another.
King: "We don't enforce against all uses of CANDY - some are legitimate and of course, we would not ask App developers who use the term legitimately to stop doing so."
And then harassing Stoic.

I guess that means the enforcement rule goes all the way across the board? Not just for "legitimate" uses of the trademarked word.
Otherwise how is the Banner Saga not using the term legitimately?

This rule sounds an awful lot like the legal system trying to make a buck :)
And the reasoning behind it seems to favor trolls, or worse: trolls with money. It is hard to try and find sympathy for victims of this system like Bethesda and King.

Is there a way to tell the probably smart law making people to stop doing that?
Or to protect oneself from this beforehand, so there's no need for legal distractions?

Thanks.

Jas Purewal
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Well, hopefully discussions like the one you/I and the other commentators are having will help influence people for a start!

Adam Bishop
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"Think about it from the trademark holder's perspective: if you let slide what you think are the deserving exceptions to the rule, it can make it a lot harder to fight the undeserving cases, the people who really are ripping off your product."

Surely the intent of the law is not to make rights holders threaten lawsuits against other companies where there is no reasonable prospect that they would win and where it is clear to everyone involved that no violation has taken place.

And at any rate even if companies are required to threaten lawsuits in such situations simply as a formality, King's language in their filing against The Banner Saga says that they believe Stoic's behaviour is "deceptive". That's goes beyond merely asserting a right, it's making an accusation of ill intent.

Dan Felder
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Whether it's the intent of the law or not - it's the reality of the law. Sucks, but true.

Hakim Boukellif
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"once you have a trademark you must seek to enforce it, whether you like it or not, or risk losing it."
I'll just leave this here:
https://www.eff.org/deeplinks/2013/11/trademark-law-does-not-requi re-companies-tirelessly-censor-internet

Anyway, I think the real issues most people take with this whole thing are that:
* King believes they deserve the trademarks in the first place
* Trademark offices didn't reject the application the moment it was filed

Amir Barak
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Interesting blog; always good to see a rational and informed view of things.

You found the following statement reasonable;
"“The particular App in this instance was called ‘Candy Casino Slots – Jewels Craze Connect: Big Blast Mania Land’, but its icon in the App store just says ‘Candy Slots’, focussing heavily on our trademark. As well as infringing our and other developer’s IP, use of keywords like this as an App name is also a clear breach of Apple’s terms of use. We believe this App name was a calculated attempt to use other companies’ IP to enhance its own games, through means such as search rankings”."

But all they're doing is optimizing their app's discoverability (is this a word?). Much like King did by choosing the name "Candy Crush Saga". SEO techniques, while laughable and kinda pathetic, are still a legitimate practice by most. What King are really saying is, "We care very little about originality or gameplay and we couldn't give a f*** about our customers 'cause they're dumb so let's choose the most generic name possible. OMG OTHER PEOPLE ARE DOING THE SAME THING, LET'S QUICKLY TRADEMARK AND SUE THEM!". You can mask it as legal but it isn't reasonable...

Jas Purewal
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Thanks for posting Amir. However, I must disagree with you - especially on your comments towards the end. If a developer works hard to come up with an innovative name and brand for their game, which is btw often a lot harder than it seems from the outside, why should other people use SEO techniques to try to free-ride off it?

There are arguments for and against this approach and there isn't a single legal answer on it. It's happening at all levels at the moment - even with companies like Google, Facebook and eBay in relation to search words (there's been lots of fighting over companies using their rivals' names as Google Adwords, for example). So I can understand how there could be legitimate arguments for and against. But I think it's unfair to paint King in quite so crude terms as you did in the last paragraph. They're perfectly entitled to their approach on this issue, as you are or I.

Amir Barak
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I guess it depends on what you consider as hard and innovative.

"They're perfectly entitled to their approach on this issue, as you are or I."
Is some places I'm perfectly entitled to kick a kitten; still makes me a douche if I do though.

Are you seriously putting out the idea that King innovated by calling their Bejeweled version "Candy Crush Saga"? Really?

They did their market research, discovered the best combination of words to elicit a very specific response that they required in order to get money from people. It's all quite legal. Doesn't make them "Innovative" or "Hard Working". It makes the people who work for King and/or any other company like it asshats...

There are heaps of reasons not to trademark the word "Candy" or "Saga" but that would make them less money. Unless you seriously suggesting that the sad little executives of King are doing this out of charity?

Leonardo Ferreira
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On the subject of copycat games, I should be pointed at that the prevalence of such imitators using common words would not change by copyrighting said words (tactics would change, such as the use of synonyms - Sweet Crash Saga, anyone?), and also, part of the blame for such cheap tactics of competitions falls on the shoulders of the gatekeepers; the Apple and Android Store, with its poor discovery system and emphasis of Top Lists, creates an unsustainable ecosystem, in which a few games become center of attention, and hundreds of recent releases fall by the wayside. No wonder most games are mechanical knockoffs of each others, and resort to "me-too" naming conventions.

Jas Purewal
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It's a really good point Leonardo - many legal issues we are seeing in the mobile world are made worse, or at least harder to solve, due to the reliance on the platforms to be part of the solution. Copycat games and SEO gaming is part of this.

Michael Uzdavines
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"If you can make good arguments why consumers would know your game isn't made by the other guy or similar to his/her game, then that's a big step towards proving no infringement."

That is, arguments in court. Against a litigant with exponentially more funds to litigate than almost all indie devs. I'm also an attorney and I know that in theory that statement sounds valid, but in practice it is flawed.

Jas Purewal
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I'm sure you'll understand therefore as a fellow lawyer that very few cases go to court and 9 out of 10 cases settle. In practice, these points would be set out in legal arguments submitted to the trademark office. Very rarely would I expect to see a game trademark going before a judge. It'll happen (it did with Mojang, after all), just not often.

Therefore, it's even more important for developers to know their rights so that they can assert their case.

Alan Boody
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How many of those cases is because smaller companies cannot afford the lawyers pushing to move these to court?

Michael Uzdavines
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I agree, I'd say 99 out of 100 settle. The problem is that in our scenario the "little guy" shouldn't have to settle, and the settlement is probably not going to be favorable. Even asserting your case is expensive these days.

I will concede we are talking about a very specific scenario. But it just so happens that scenario really strikes a chord with the vocal members here. The main problem is that intellectual property laws are meant to stimulate creation, when moves like the one we are debating only suppress it.

Are we to believe that King wouldn't have made Candy Crush if they knew they couldn't trademark "candy"? (We know the answer, of course) They are free to trademark the more specific elements of their game to protect their IP without boxing everyone out (legally or practically) from the word "candy" and especially "saga".

The end result is that there will be no developers to assert their case because the games just won't get made. Which is a shame.

nicolas mercier
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This is a very theoretical point of view. In reality, when King tried to prevent The Banner Saga from trademarking their name, they revealed their identity as a trademark troll. Of course, it's your business to deny that it's trolling.

Jas Purewal
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I appreciate your thoughts on this Nicolas - I set out in an earlier comment response above a few thoughts about the Banner Saga.

Adam Bishop
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I think the idea that they aren't trying to claim ownership of specific words is contradicted by their behaviour toward Stoic for their game The Banner Saga:

http://www.rockpapershotgun.com/2014/01/22/king-are-trying-to-can
dy-crush-the-banner-saga/

In their opposition to Stoic's attempt to trademark "The Banner Saga" King claims that:

"Applicant’s THE BANNER SAGA mark is confusingly and deceptively similar to Opposer’s previously used SAGA Marks."

This is total nonsense and unless their lawyers are exceptionally incompetent I find it impossible to believe that they really think Stoic is attempting to deceive players into taking advantage of the names of King's games. No remotely competent person would confuse a turn-based, tactical, PC RPG about vikings with the casual mobile puzzle games that King makes. There's no way to interpret this other than that King are either overzealous bullies or imbeciles.

Amir Barak
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It isn't nonsense. I know people who played "The Banner Saga" for almost 4 hours before realizing it wasn't "Candy Crush Saga", that's how easy it is to mistake the two! They kept trying to match three Vikings but nothing happened...

***
Also, I think you're overlooking the simple fact that they could just be overzealous imbecile bullies.

Justin Kovac
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Which is confusing since there are a lot of other games and trademarks with Saga.

Square Enix has their "Saga" line of games and recently teased a new one is in development. Their most recent Saga game is a digital card game, which is only in Japan and no USA trademark. But their past games certainly have one in the USA.

brad coleman
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I thought Tim langdell was successful with his patent trolling up until he decided to take on EA? Great that they beat him by it did nothing for all the previous people who couldn't.

Jas Purewal
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I don't think so. He had a few earlier minor victories as far as I recall but was then hammered in cases in both the US and the UK (it was the UK case I was referring to in my post).

Steven Stadnicki
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But isn't this a function of him picking on targets 'too big' to be bullied about successfully any more? That case still seems to me like compelling evidence that this may not be something for larger developers to worry about, but it is a wholly effective tool against small developers.

Jas Purewal
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I can't deny that the law can be used as a weapon by well-funded businesspeople against less well-funded people. It does happen. But honestly it happens a lot less than you might think. Actually, most businesses - especially in the games industry - understand that in this age you always run risks by that kind of action, if only from a PR perspective.

Ofc that doesn't really apply to Tim Langdell, who doesn't care what people think, large or small.

Luis Guimaraes
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"Actually, most businesses - especially in the games industry - understand that in this age you always run risks by that kind of action, if only from a PR perspective."

Is that the case with the Candy Crush audience? How informed is the audience about the games industry and this whole situation?

Alan Boody
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@Luis

I was thinking about that as well.

Kaitlyn Kaid
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I would also like to know if, by applying for the "candy" trademark for headphones, would prior art by Skullcandy (making headphones since '03) invalidate the whole of the application or only in that one area?

Justin Kovac
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I was curious also about that. The Skullcandy trademark includes headphones.

So is not Candy trademark for headphones " confusingly and deceptively similar to"?

Or Skullcandy has not noticed the Candy trademark application.

Jas Purewal
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They'd be entirely different applications. The Skullcandy trademark applies to headphones and other electronics. The King "Candy" trademark would be in respect of games and possibly merchandise etc. Only if King and Skullcandy made an identical or similar product which was confusingly similar would there be a trademark issue. As I mentioned in the post, trademarks are not a monopoly right giving you exclusive 100% control over the trademarked word/logo/phrase etc.

Justin Kovac
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Both of their trademarks mention "headphones" from what I see. Do they not clash with one another on that type of item? Of course Skullcandy is not covering everything Candy is listed for.

What if King releases a Candy line of headphones? Would it be that the Candy line is linked to a game IP they would not be conflicting?

Vicente Cartas Espinel
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According to another post in Gamasutra, they filled trademark for quite a few number of categories, including headphones.

"Approved for: ... online magazines, online newspapers, electronic journals, blogs, podcasts and mobile game applications in the field of computer and video games; Exposed photographic film; Headphones; Juke boxes, musical; Laptop computers; Microphones; Baby monitors; Battery performance monitors"

This (if it's true, I haven't confirmed the other post) and their behavior with The Banner Saga clearly marks them as patent trolls.

Rui Mota
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Well put but flawed in my view. I don't see any middle ground on this case.
King is welcome to register "Candy Crush Saga" and the logo. (period). I would go as far as when limited to video games only (keeping the use of the phrase fair deal in everything else).

If King finds someone using Candy whatever trying to piggyback on their brand go nuts on the courts. But preemptively taking the words Candy or Saga from common use, is fundamentally wrong, and no amount of sugar coating can change it.
Its an offense to common liberty's, its a stab at innovation and creativity and an unacceptable pressure on the weak by the strong.
I lake proper English knowledge to express my disgust.

Jas Purewal
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I can only recommend you read my post again and give some thought to the nuances of the law here. This is NOT a monopoly situation where the word is being taken out of common usage, so your initial premise is wrong I'm afraid.

Rui Mota
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I´m fundamentally opposed to the concept of trademarking common words. So every argument revolving around this possibility is flawed in my eyes. I did not want to label your text as flawed, only the base premise that registering "candy" or "Saga" is even possible in any way. It repulses my sense of right.
I think this is the core issue, not the nuances of the trademark law.

I just don't see he benefit (as in positive) of it.
Its not needed to defend your brand, but by allowing it, it actually forces you to do so, and thus pushing aside everyone that cannot afford it.
The only beneficiaries are company's that can afford it, wish are given a Troll pass and lawyers. The rest of us loose as resources are wasted.

Michael Thornberg
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Deleted the game at once.. I will never play any of their games again... ever! I thought this whole Tim Langdell debacle sent a clear message... apparently not.

Gary LaRochelle
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Should of called it "Kandy Krush". They could of even used the stylized "K" from their "King" logo.

Reina Magica
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I think the whole idea of being able to trademark very generic words like "Candy" or "Saga", or "Face" or "Book" that are PARTIALLY in the name of some brand is utterly ridiculous. I can understand if it's a single worded brand, say Apple, and they wanted people not to make "Apple (insert other word)" branded electronics, it might be reasonable (in a sense), but when the whole trademarking process blocks people from using general, dictionary words like "Saga", which have a much longer history in mythology than any of these brands, it's ridiculous. The whole meaning behind the word "Saga" has more to do vikings and storytelling than anything related to candy or candy-themed puzzle games, so it's incredulous to assume people would associate the word "saga" with a game that's only been around for less than two years, vs. associating it more often with the historic meaning of the word, which has been around for longer than 800 years and is much more widespread in pop culture! Trademark trolling obviously abuses a system of "I claimed this generic word in my title first, now pay me or change your name" to a level of insanity.

David Keyworth
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I have to admit, mentioning Apple put things in a very particular perspective for me. Apples are very generic, common things. Even if they were named Apple Computers, there would be obvious market-sniping advantage to naming your product the "Apple Wristwatch".

I still disagree with King's belief that a lawsuit is needed to decide ridiculous cases like this, though. They're in their rights to sue...but I still hope their loss comes quickly.

Jas Purewal
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Thanks David, I'm glad I added the Apple example. I must admit I just did it offhand, but I'm glad it turned out to be useful to help explain my thinking!

David Midgley
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So Mr Purewal, I trust you'll be putting your money where your mouth is and offering your legal services pro bono to http://stoicstudio.com to help them defend their original and clearly not-infringing Norse mythology game The Banner Saga?

I look forward to your response in confirmation. After all, it's lawyers like you who work for free who are going to help them fight against King with its estimated $956,114 in daily revenue -- right?

Jas Purewal
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Thanks for your condescending reply. I spend a great deal of my time helping out developers of all sizes, small and large, including giving them pro bono advice when I can. That's also why I wrote my blog and these articles.

I believe Stoic have their own counsel, but as I said in my post, I'm always happy to speak with developers on legal matters.

David Midgley
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I detect some sarcasm in your thanks. Just to clarify, I wasn't trying to condescend -- I was quite serious in my question, and my question didn't arise from a feeling of superiority to you, but rather in response to the claims you made in the article you published here.

Stoic have already stated that the trademark issue is hindering their ability to plan out a sequel: http://www.polygon.com/2014/1/22/5335766/stoic-king-is-hindering-
banner-saga-sequel

And the money behind King is staggering. I don't see how Stoic can hope to engage in a legal tussle with them without a whole TEAM of pro bono lawyers -- or a new crowdfunding effort devoted solely to raising legal funds... which isn't quite as sexy as crowdfunding a game.

It's great that you devote some of your time to helping out developers, and that some of that time is pro bono, but I find your article a touch condescending itself. It suggests that a key issue here is that internet commentators don't understand the law, and that if they did, they would see it's fine for King to oppose Stoic's trademark registration, because they are only defending their trademark.

Two thoughts:

1 - They wouldn't need to defend their trademark if they hadn't trademarked 'Saga'. If they had only trademarked 'Candy Crush Saga' and 'Candy Crush', they'd be fine and they wouldn't be stomping on a legitimate third party.

2 - Resolution of problems through the courts may be fine from the perspective of a lawyer, but in the eyes of everyone else, it's a colossal waste of time and money, in this case borne out of corporate overreaching by the latest greedy mobile giant.

Shea Rutsatz
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No need to be a jerk.

Justin Kwok
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One of the biggest issues I have with this is that trademarking the word "Candy" also puts restrictions on the kind of content that can be in a game. It is likely that any game (especially casual) that has candies as a motif in game will need to have "Candy" in the title. In mobile, it's important to have a descriptive title.

This effectively gives King not only a monopoly on the Candy name but any effective use of candies as a theme in games. Candy Crush is not the first game to use candies as its theme and it definitely won't be the last, but this trademark effectively allows only King to be recognized for it. Can you imagine if someone trademarked "Jewel"?

This would basically be the same as saying (in the core market) that you can have zombies in your game, but you can't advertise that you do, only one company (for argument's sake let's say Activision) can.

Now, I'm sure that people might say that I'm exaggerating, since you can have all kinds of marketing materials out there that tell people there are candies in your game. But especially in the mobile space, your name IS your marketing and is likely the only marketing that the consumer ever sees.

The Apple trademark analogy is interesting, but I don't think it's apt. Apple started off as Apple Computer Inc until it differentiated itself enough to be independently recognizable from all other companies in the space. It also does not define what goes into computer products. Candy Crush, IMO has not done anything that significantly differentiates itself from other games with the same theme or similar name to warrant having a trademark for a common word which also defines what content goes into products.

As much as King may be terrible for pursuing these measures, it's not their fault, they are simply doing everything legally available to them. This is really a matter of the trademark issuers needing to be fixed.

Pedro Fonseca
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Adding to your argument, Apple's name is anything BUT descriptive in terms of what the product is and contains, so any electronic named "Apple Something" is either bandwagoning or better contain actual apples inside.

Rui Mota
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Still they should not won "legally" the word "Apple" --> Given them a free pass on every court.
If having a trademarked word was not possible (as it shouldn´t); the company defending is brand would not have the excuse of brand dissolution to persecute every Joe Schmuck, but actually add to pick is fights with actual treats to the brand and offer actual prof.
Joe Do should not have to go to court, wish he cannot afford anyway, on the simple grounds of using a common word.
The minute this type of claims are accepted in court, we have already lost.

Jas Purewal
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I'd like to give a simple answer to your reply Justin to reassure you, but I can only offer partial reassurance by saying that this will depend entirely on the circumstances. You can't say that any game with candy or zombies or so forth would be banned by someone else having a trademark over it, but equally I can't say this will never be an issue either. It comes down to applying the tests - are these similar products and do they look confusingly similar to the public?

We already have an example of this in the recent games industry history, which was Bethesda's scap with Mojang over The Elder Scrolls vs Scrolls. The parties came to an amicable resolution and both games now co-exist together.

My purpose in writing this article and these replies is to help show that trademark law is pretty sophisticated and there are ways to get through these kinds of difficulties.

Pedro Fonseca
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Personally I don't see the moral reason to not accept single-word trademarks as long as it's a word that's obviously linked to the company/product/whatever and nothing else in that field.

In the Apple example, as I mentioned, any tech company trying to call itself "apple" or release an "apple something" product can't be taken as anything other than trying to sell on the popularity of Apple products, same with Microsoft or Google, there is no other way to consider the issue, since neither of these companies' names is descriptive of what they do or use.

However, the name Candy Crush Saga is very descriptive of what the game's about; it tells us that there are candies, crushing of said candies and it is a saga, so I expect it takes a while to see its whole.

Trademarking the whole tittle and its intent is quite sensible, after all, a game called Sweet Destruction Legend isn't using any of the words, but is obviously bandwagoning.

But trademarking the words (DESCRIPTIVE words, emphatically) doesn't sound moral at all (even if it is perfectly legal), since it leads to ridiculous lawsuits such as with The Banner Saga and could happen with another game featuring candy or crushing of something that happens to be named Candy Heroes or Rock Crush Armageddon.

Amir Barak
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"However, the name Candy Crush Saga is very descriptive of what the game's about; it tells us that there are candies, crushing of said candies and it is a saga, so I expect it takes a while to see its whole."

Saga, I don't think it means what you think it means...
http://en.wikipedia.org/wiki/Saga

No, a descriptive name for that game would be Bejeweled-But-Skinned-With-Candy. I guess it's not as catchy as Candy Crush Saga.. Gee, I wonder why they chose that name.. Must have quite a deep connection to the complex narrative and gameplay systems... Ah no, they chose it because it's f***ing catchy and they are f***ing assholes.

Pedro Fonseca
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How similar Candy Crush is or isn't to other games isn't into discussion here and shouldn't have any weight with regarding their tittle, regardless of your opinion on the matter.

As for "saga", went for the most commonly used and generic definition of "story", but widely recognized as more of a "long story" or "long succession of events".

Alejandro Rodriguez
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Short version: If you want to use words that may have been approved as trademarks by companies with infinite resources, be prepared to defend your brand from continued assault and arbitrary accusations that whether founded or unfounded, will require you to waste time and money proving that you are not piggybacking on their claim to fame.

The informed aren't questioning the legality of what is happening. King has a unicorn complex. Just so happens that they are fat off the land and can afford to trample any and everyone that they arbitrarily decide deserves an objection.

I hope, more than anything, that they take a stab at a dog their own size and get flattened in court.

Alan Boody
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At first, I opposed the idea of someone trademarking a word like "Apple." To me, this is a common word. However, you have to consider the word in context with why Apple would copyright it. You understand why Apple -in terms of technology- would be granted to them. Someone could piggyback off of their success by trying to insert Apple into their own name to confuse customers (which Trademarks are used to prevent).

In terms of King, they have every right to trademarking "Candy Crush Saga," "Crush Saga," "Candy Crush," or "Candy Saga." Games with these names could EASILY be confused with their games and branding. However, the opposition to "The Banner Saga" trademark filing shows exactly why -in context of what King is filing the trademarks in- that it is clearly an attempt at abusing the trademarks.

There's no amount of 'sugar coating' that can be done to change that.

What I'm wondering here is that the actions against Stoic is being pushed by executive management with egos or lawyer/legal advice looking to increase their bottom line.

ultra brite
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how did they get those trademarks ? did their previous owners lose them by not trolling enough ?
this whole mess is a blackhole engineered by and for trademark lawyers. you have to pay them to dispute a trademark, and then you still have to pay them to keep it.

Justin Kovac
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Since Banner Saga is a new trademarked being applied for, how does Saga have effect on pre-existing trademarks related to games and computer games? Like Unlimited Saga by Square.

Justin Kovac
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Hasbro applied Candyland trademark to computer game programs in 2002.

Andrew Wallace
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The most interesting and informative part of this article you completely fail to explain: that a trademark is not a monopoly. How so, exactly? If they can go after The Banner Saga, what implies they can't go after any game containing "Saga" or "Candy" in their title? The developers of Dog Sled Saga (a two person team that DEFINITELY doesn't have the money to take King to court) are extremely concerned about this.

Yes, theoretically they can fight it, if they're lucky enough to get a pro bono lawyer or decide bankruptcy is an option, but either way they're suffering in a case where not only did they do nothing wrong, but the other party doesn't really benefit anything from it. If the USPTO would do it's job correctly and see that these words are commonly used in game titles and denied the trademark, this wouldn't be an issue. The idea that "Well it's okay because the courts will sort it out" totally ignores the trouble that going through any legal process puts people through, and comes off extremely privileged coming from a person that literally gets paid for it.

David Midgley
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Thanks for articulating this so well Andrew. I completely agree.

Jas Purewal
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As I mentioned - it's in more detail in my guide to demystifying trademarks and games: http://www.gamerlaw.co.uk/2011/demystifying-trade-marks-and-games
/. I also talk about it above - the point is that there's a test of confusing similarity. if Apple: the Game is very different to another game called Apple, such that the public would not be confused by the two of them or think they were made by the same person, then no trademark infringement.

John Trauger
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...so if I have this right, let me oversimplify:

When you register a trademark, you're in a sense, registering a claim in context to your current business or planned expansion of business.

Not enforcing the boundaries of your claim can/will lead to the claim disappearing.

So when King trademarks "Candy" it's not that nobody and ever use "candy" in a trademark besides them in any business. It doesn't even mean that nobody can use "Candy" in connection with a game.

It just means that King has a claim on "Candy" in association with the genre of games that King produces.

Is that in the ballpark of right?

David Midgley
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It means that King has a claim on 'Candy' in association with the category of trademark it's registered for. I believe one of the lines in the trademark simply states 'computer games'. This means any and all games, not a single genre.

King can attempt to shut down any computer game that tries to register a trademark involving 'candy' or 'saga', or, indeed, can simply attempt to stop sales of any game that uses those words in the name, whether that attempt comes in the form of legal threats, App Store takedowns, or judge-issued injunctions.

And since the USPTO looks like it's granting their trademark, the only way to ultimately deter or prevent King from doing this will be to take them to court to prove they don't have the right to their general trademarks, or that the takedowns are inappropriate due to a lack of confusion between the products. For most mobile (read: tiny) developers, the expense of this will be prohibitive, and the risk of being found to owe damages could cost them not only their games and hence livelihood, but also their savings (since many small developers are no doubt not incorporated, and could thus be exposed to personal liability).

When a company like King generates such massive revenues, it's not hard to see how the damages they sue for (for, say, loss of business) could be astronomical.

Jas Purewal
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No, I'm sorry but that's just not right. Trademarks are NOT a monopoly right: a trademark over APPLE does not mean I control all uses of APPLE. It just means I can stop similar marks that are confusingly similar to my own products.

The reference to "courts" is inappropriate here - it will be down to the USPTO or other national trademark registry. Only very rarely are courts involved.

As for your damages assessment I don't even know where to start.

I value all opinions deeply, but armchair lawyering on complex subjects does not help the community.

Jas Purewal
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yes!

Thomas Schenck
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Wouldn't this mean that the existing companies called "Candy" have a say as well, since now this group is going to prevent them from entering this space - even though there is no way this is the first use of the words? That's probably what gets people most upset - the balance has shifted from "first to invent" to "first to file" in almost every registration field now, which is simply a way for people with lots of money to stomp on the little guys.

I will never give them money or help.

Jas Purewal
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First to file is prevalent across most of the world and has been for a long while - only recently has the US moved to it. First to file is said to prevent just as many injustices as first to invent did. The problem with first to invent was that any old troll could come out of the woodwork and claim they invented or created the work, even if they forgot to file. With first to file, you better be ready to get moving or you lose out. How's that different to anything else in business?

E McNeill
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There has been a lot of misunderstanding and shallow analysis over this whole trademark tiff, so I'm very glad that you're trying to give a helpful explanation, Jas. I see that some commenters have been jumping down your throat or misreading your article, but please know that your effort is sincerely appreciated by others.

Jas Purewal
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Thank you - I really appreciate this.

Andy Lundell
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"The test for whether one game trademark infringes another is NOT 'does one of them have a trademark registration' but 'does one of them have a trademark registration AND are the infringement tests met too'."

That may be how it is in a court of law. But what about a court of Apple App Store?

Jas Purewal
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Actually, it can be even worse in the court of Apple App Store because Apple typically refuses to get involved - they just tell the parties to resolve the dispute and, if they can't, usually they listen to the loudest voice. Or they just do whatever they want - they're Apple.

Alan Boody
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I did what I think will help Stoic the most. I bought their game. Didn't plan to, but in my view this is money well spent since it should help them out -even if just a little bit- since they seem to actually want to create game games instead of reskinned match-three games designed simply to leech money from people.

Alan Boody
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*create great games

SD Marlow
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Yes, clearly, because no one would confuse an iPhone with something made by Samsung... Again and again I hear it's just about the name/brand, not the content followed by "these tests" which look at content, and are based on common sense, not law. Common sense says Apple should have just pulled ACCS-JCC: BBML from iTunes with the same ease at which YouTube yanks videos (or at least re-monetizes them).

People are not up in arms about King wanting to protect it's IP/branding, but that should only extend to "Candy Crush" and not Candy and Saga on their own. As I mentioned in another post, Star Wars is a trademarked thing, but no way should anyone be OK with the idea of trademarking "Star" for anything related to space or sci-fi. Saying that others have done it doesn't make it right.

What we need is clear legal precedent that says you can sue for monetary damages just by showing a competitor is riding your coat-tails, bring you (your brand) down while pulling themselves up.

Mike Kiessling
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I think most people don't call King.com trademark trolls for enforcing their trademarks but for seeking the trademark on a single word in the first place.

I'm perfectly fine with them having the rights on "candy crush" or "crush saga" for their clone-games, but just the FILING of a trademark for "candy" or "saga" is a troll move.
(For the record, I found the "scrolls" issue quite ridiculous as well.)

And even more to the point:
"Sagas are stories about ancient Scandinavian and Germanic history, about early Viking voyages, the battles that took place during the voyages, about migration to Iceland and of feuds between Icelandic families" (From Wikipedia)

So a game company that makes a puzzle game where you destroy colored sweets is asking a company that makes a turn-based role-playing game set in a viking world not to use the word "SAGA".
Sorry, but quit fucking trolling!

Amanda Fitch
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It would have been horrible if Sierra had trademarked the word "Quest" for all adventure game titles. Not a fan of this new King development.

Whether what King did makes sense or not, loose trademark laws make it very easy for them to crush smaller companies who don't have the resources to protect themselves in court. I can think of many reasons why a large company might want to "snuff" out potential future competitors.

David Paris
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I appreciate that you took the time to write up a clear and more balanced summary of the patent issues involved here. That's purely beneficial for this community.

This is the part that bothers me though. When discussing the fact that that Candy Crush is really just yet another derivative clone, you mention: "That’s not the point here. King registered the trademarks (in the EU and the process is underway in the US), they are going properly through the trademark process, if anyone objects to their claims then they can go through the process too. "

So this sounds like the real core of the patent trolling issue. In order to protect yourself against potential trolls, you have to do a lot of additional legal legwork (which will cost me some significant amount of time and money), for which I get... a bit more protection from large trolls like King.

The average small developer doesn't have extra resources to spend on nebululous threats like this. And as such, they become the perfect target for larger opportunistic evils. The Banner Saga case is an excellent example of exactly this problem.

Andy Lundell
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Exactly, The statement "they are going properly through the trademark process" is satisfying only to a lawyer.

For the rest of us, I don't see how this argument applies any less to the worst trademark/patent trolls the industry has seen.

Jas Purewal
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Hi David - I appreciate you taking the time to write these thoughts up and I'm glad you thought I was trying to be constructive.

I don't disagree with you at all here - I've worked with many developers who simply aren't in a position to even think about filing for trademarks yet, let alone fight off someone else's. With the law as with so many other parts of business, life isn't fair I'm afraid. We shouldn't make the mistake of thinking the law is perfect, but my point is that it does try to strike a balance between right and wrong, big and small, rich and poor. Many people are acting as if the system itself is defective or broken. Maybe in the most egregious cases the law gets it wrong, but we are as much to blame ourselves if we don't understand the full details of what happens in any particular situation.

If unfortunately a small developer is targeted by e.g. a patent troll, then that developer will have some options available to it - including reading great discussions like on Gamasutra and hopefully getting pro bono advice. That's the same the world over - not just in the games industry.

SD Marlow
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As I understand it, Candy, Candy Crush, and Saga will be registered marks, but how does one actually display that? (Candy(tm) Crush)tm Saga(tm) ??? Can you have a trademark within a trademark?

Jas Purewal
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There's different practices in different parts of the world. You might occasionally see a word or logo being (TM) or (R) more than once, but that's relatively rare. Usually there'll be the symbol just once and then some small print wording somewhere to accompany it.

kirk johnston
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Yes but let's imagine I have created a game called Santa Saga, which I have, and I have not applied for any Trademark because I don't agree with the principle of paying some random lawyer money to protect something under a system I never signed up to and I believe that should be mine by default anyway under just my human right to create something and it belong to me. As well as it be my human right to sell my creation should I choose.

Let's assume I'm the first person to use the specific name Santa Saga too, which I presume I am and certainly on the App Store.

If I have never signed any agreement to abide by this I assume lawyer created system called Trademark law then why should I have to give up my specific name if King decides they don't want me to use the word Saga?

Why should I even feel compelled to respond to any of their requests when I have never agreed to follow the rules of this Trademark system in the first place?

I've made something and given it a name and who are you or any lawyer to tell me what name I can and cannot give to my creation?

What actual grounds does the law have to stand on here if I choose not to be part of it in this particular case?

Trademark law is not some fundamental law that we all have to follow because society would fall apart if we didn't, like the unspoken agreement we all make not to kill someone or else we will be punished under the law.

I don't consider my game name an actual "Trademark" as it would be if I registered it as such and just because King has paid some random lawyer types for this thing called a Trademark, why should it have any power over me?

I'm not in any way, shape or form trying to infringe it's Trademark.

I simply have created a game that happens to have the Saga word as part of its name, that I am selling on the App Store.

Do I not have a right not to be part of this whole Trademark specific law in the first place if that is what I choose, I'm not signing up to anything, even if I choose to sell my game and make money from it?

It's kind of like that scene in Braveheart where William Wallace says he never signed any allegiance to the King of England.

Are you basically telling me a bunch of lawyers hold that kind of power over my basic rights and there is absolutely nothing I can do about it if they decide I am in breach of their rules even though I never signed any kind of "allegiance" to their rules in the first place?

King specifically agreed to abide by Trademark law. Not me. Trademark law is not automatically assigned under general business law to every product or service with a name, hence the need to apply for a Trademark. I presume I agreed to follow general business laws when I started my business and started trading goods but I never agreed to follow the specific rules of Trademark law.

Do Trademark lawyers/laws place above my fundamental rights to give a name to my own creation that I also intend to sell to someone else?

Do you get me?

Note: I get that Apple might feel obligated to remove my game from the App Store if King requests it does but that is a different thing that is beyond my direct control.

Calvin Lindfors
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IANAL, but trademark law in the US would probably fall under Article I Section 8 of the US constitution, specifically the Interstate Commerce Clause and subsection 8(To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;). So unless you think all laws ever are optional, then no, it's not an opt in thing if you want to sell in the US.

Calvin Lindfors
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Question. Hasbro has previously released several Candy Land video games, and has had a trademark on Candy Land for over 50 years, would they be able to challenge King over their new trademark of Candy? Would King be able to sue Hasbro over releasing a new Candy Land game despite the long standing trademark on Candy Land simply because it includes Candy?

Daniel Gutierrez
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Thank you for posting this very long explanation. I read about this on Kotaku (which is the FOX news of game coverage...) and figured the sky wasn't actually falling and came to gamasutra for a real explanation of what's going on. And, as usual, wasn't disappointed!

David Midgley
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Sounds like the IGDA agrees that King was overreaching.

https://www.igda.org/news/161325/IGDA-Statement-on-King-Trademark.htm

Let me quote:

"While we understand and respect the appropriate exercise of Trademark rights, 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, and directly contradict the statement King's CEO, Riccardo Zacconi, made on 27 January"


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