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This seems to happen a lot in my industry, the game space. And while I love you all these knee-jerk witch hunts are a bit tiresome. So to get to the meat of the problem: Candy Crush Saga is still a fully operational, commercially successful game, and King, as its lawful publisher/developer, has a vested interest in protecting its IP portfolio to the extent required to prohibit infringement.
Likewise, The Banner Saga is a beautifully rendered and well-designed product that likewise has an interest in protecting its IP. In other words, I do not think there is a “bad guy” here. We simply have two players in the IP landscape. Being on “Team Candy” or “Team Banner” does not make you any more or any less “legit” from a legal perspective.
With that being said, we have an instinctive desire to protect “legitimate”, “independent”, and “serious” games over the “casual” game publishers in the market. This is all well and good if that’s what you want to champion, but the law doesn’t play favorites for the sake of your preferences. Nor should it.
It seems that there’s an uncomfortable trend of painting all cases of trademark and IP enforcement with the same brush. This is problematic for a number of reasons. First, it undermines and discourages those who may have a legitimate IP interest from protecting or even pursuing potential legal rights. A small developer who has come across many of these articles whereby the distinctions in the underlying content in each game are pointed out when we’re discussing Trademark protection could come to some very erroneous presumptions.
To put a finer point on it…
For example, if one were to read this article by Kotaku, one might assume that the style of game play and game mechanics have more to do with a Trademark analysis than such factors actually do. But think of this from the perspective of a TTAB (Trademark Trial and Appeal Board) Judge who very likely does NOT play video games: in front of him he has two parties, one who has a series of marks using the phrase “saga” in Class 009 video game products (along with whatever market data/specimens King has attached to its opposition), and the other who has recently applied for a mark in the same class for the same type of good that also uses the word “saga”.
“Ah!” you might say, feeling particularly savvy and confident after reviewing a few articles on trademark protection, “Isn’t Saga a descriptive use?” But I’m sure the people over at Namco/Bandai, who have vigorously protected the “Tales” brand for decades, would have a thing or two to say about that. And so would their fans. There is a (albeit hazy) threshold when a distinctive word acquires “secondary meaning” for Trademark purposes. When the consumer base associates “Saga” with the brand over the textbook definition, you’ve pretty much hit that point.
So it’s not clear cut. And it’s hard to say who has the stronger legal position, which is why people settle. The problem is this whole tendency to vilify one party or another simply because they hope to enforce their valid interests, and that’s something I can’t get behind.
This leads to the second problem—we muddy the waters of the developer landscape when we pursue these “witch hunts”. We pit long-standing, hard-working enterprises who have built up their businesses to where they are today against independent developers as if they haven’t ALL stood on the same starting line. And this seems to be in egregiously poor taste from my perspective.
Cleaning the Flotsam
While I hate necromancing this name again, Tim Langdell does NOT set the status quo in Trademark enforcement, I can promise you. The problems with the “Edge” marks were multitudinous and compounded by the fact that Langdell hadn’t actually released a game in some 20 years. This ultimately led to the mark’s abandonment and cancellation, a decision I wholly support.
In truth, this probably does have a bit more in common with the Scrolls debate. It certainly seems to share the same amount of back-biting and pointless industry in-fighting, which gets back to my main point. Whether you’re Zenimax, King, Majong, or Stoic, you’re all attempting to achieve the same goal: you want to make games that people want to play. To facilitate that process the government has granted you certain alienable rights in the form of intellectual property so that you may go forth and profit from your game-making ventures.
Jas Purewal of Gamer/Law has already provided enough background on this, so I’m not going to belabor the point. However, to make use of those intellectual property rights some enforcement measures must take place. That is because piracy isn’t the only threat to IP. Cloning, knock-offs, and sub-par products that act as pariahs to existing established brands have a way of making a mess of the marketplace. Unfortunately, under intellectual property law (excluding, in most cases, patents), if you do not a) use your IP and b) enforce your IP, you are in a position to lose that IP. Selective enforcement creates its own myriad of problems, so it is often better to take action on any and all potential claims.
There are certainly “bad actors” in the game space when it comes to IP enforcement. However, it seems counter-productive and, frankly, stupid, to call out every successful company every time it seeks to enforce its rights against a smaller developer. Chances are there’s no ill-will there. The company is doing exactly what it must do to protect its ability to create the games people want to play (even if you are not one of those people).
Sadly, it also tends to highlight a lack of education with regard to an area of the law that is by all accounts of singular and vital importance to our industry. Keep that in mind the next time you’re compelled to face-roll a response like “LOL their lawyers are so stupid, those games look nothing alike!” The people who are actually paid to make these decisions probably aren’t laughing with you, they’re laughing at you.