By Juliya Ziskina – Guest Blogger
When you have intellectual property––especially IP worth millions of dollars––it makes sense to protect it. But can such protections go too far? Many video game industry figures are asking this question, as game developers whose games include the word “candy” are receiving cease-and-desist letters from British game developer King, the makers of the game Candy Crush Saga, one of the most popular apps across Facebook and on mobile devices.
King has registered a national trademark in the European Union for the word “candy” as it pertains to video games and, strangely, clothing. King is still awaiting word from the United States Patent and Trademark Office (USPTO) on a similar trademark application. This could potentially spell trouble for developers who have or plan to release a game that includes the word “candy.”
King’s move to secure ‘candy’ is not the company’s first attempt to protect a single common word with a trademark application. King’s lawyers also submitted documents to the U.S. Patent And Trademark Office late last year to block the registration of a trademark for Stoic Games’ The Banner Saga. Banner is a game from a small developer that could not be more unlike Candy Crush Saga. They are both games, but The Banner Saga is a turn-based strategy game telling the actual saga of various Viking factions. Candy Crush, on the other hand, has players matching up three pieces of sweets to make them disappear.
King’s complaint stems from Stoic’s use of the word “saga,” which King attempted to trademark for use in the video game sector in November 2011. In the complaint, King’s lawyers write that The Banner Saga is “confusingly and deceptively similar” to the company’s own trademarks.
The problem here is not just that the words “candy” or “saga” are common words; it is that they are descriptive as used in this context. Under trademark law, a company cannot own exclusive rights to a word that is descriptive of the goods or services being offered under that trademark. In this case, the main problem seems to be that King is trying to claim the exclusive right to use the word “candy” in the title of a game that is about … candy. If it were able to do that, it would not be able to stop developers from making games about candy, but it could potentially stop them from using “candy” in the title of those games.
All Candy Casino Slots developer Benjamin Hsu says that King filed an App Store notice with Apple about his game that asked him to remove it from the iOS store. Hsu says, “It’s useless to fight because us little developers don’t have the money or resources to fight back. From the other app developers I’ve spoken with on Facebook and Twitter, they all feel the same way.”
That seems to have truth to it, because several indie developers have been participating in Candy Jam, a development event that runs through February 3, 2014 and aims to flood app stores with games that contain the words “candy” and “saga” in their titles.
However, there are deeper reasons to be concerned by this debate than just the question of whether a word like “candy” can be legitimately pulled into the private domain. It is also an argument about where to draw the line and how to strike the proper balance between what is good for society and what is good for individual (or corporate) creators.
Washington Journal of Law, Technology & Arts 