King Candy’s Trademark Attempt at Crushing The Banner Saga

Editor’s Note: Bar Games is GameFront’s new bi-weekly column series addressing the finer points of the law as it relates to current events within the video game industry.

The attention grabbing headlines of “King Trademarks Candy” have come and gone from most media outlets, but the devastating aftermath still very much remains.

I work daily with game developers, ranging from a guy in his garage with a dream, to mid-level studios putting out their 20th game. Each is now left terrified they will be the next victim in a growing fad: An overnight success like King, with seemingly no respect for the industry it’s a part of, coming in with a large bank account and bullying the little guy.

For those who forget, King, the makers of Candy Crush Saga, tried to trademark both the terms “Candy” and “Saga.” They then used these trademarks to do things like prevent developer Stoic from registering the name of its game, The Banner Saga, in an excellent example of bad PR.

First, let’s chat a bit about the basics of trademarks so we’re all on the same page. Despite the common vernacular, copyrights, trademarks, and patents are three very different things. Copyrights protect your art assets, scripts, and code. Patents protect, mostly, inventions. And both are irrelevant to this conversation. But fret not, we’ll address these in later articles.

Trademarks protect your game title, company name, color patterns, and logo. They are used to protect against consumer confusion: when you see an Apple logo on a computer, you know Apple made that product. I can’t open up a computer company tomorrow and call myself Apple, because it’s trademarked. Trademarks are the shield Apple has to prevent me from posing as them and “riding their coattails” to success. More importantly, it’s the defense consumers have from being “tricked.” Trademarks are there for the public good, assuring you that you are buying the quality you expect from that mark; that a Coke will be a Coke.

To do this, trademarks need to be strong, but also reasonable. Therefore, they last forever, but can be knocked down if too powerful. Apple will always have its mark, and you, as a consumer, can always rest assured that an Apple logo on a computer shows its source. However, if a trademarked word becomes so popular that it is used as a generic term for something, you lose protection. For example, “zipper” and “phillips head screwdriver” used to be trademarks, but now consumers just consider them words for a thing. They’re too commonly used now, and any trademark protection the original owners had is gone. As per our example, if people started calling computers “Apples,” then Apple would lose its trademark.

Trademarks also offer protection in different classes of goods. That means Apple own the term “Apple” in the computer industry, not the food industry. Since Apple is a descriptive term in the food world, no one in the food industry can own it. It’s the same rules as being too commonly used that we discussed in the paragraph above. Simply put, Apple branded apples cannot exist under American law.

That leads to where we are now, with King claiming ownership over the singular words “Candy” and “Saga”. This means King believes they own the use of each word in titles in the video game industry. Legally, this is supposed to be to prevent consumer confusion between games, but in reality, it’s used so King gets to be in control of who uses either word in their game titles.

Yes, King dropped its trademark application for Candy in the US after a lot of pressure from the gaming community, but it still owns it in the European Union. Further, and much worse in my opinion, King has successfully held its claim over the term “Saga”. This was shown in its victorious effort to stop Stoic from registering “The Banner Saga” as a trademark.

If you aren’t aware, Candy Crush Saga is a basic re-skinning of the same “match three” puzzle games we’ve seen a hundred times, played primarily on mobile devices. The Banner Saga is a Viking epic, told through a role-playing game, available only on PC. They’re two incredibly different games, available on different platforms, played by different people, and concerning different subject matter, and it’s really unreasonable to think someone might confuse one with the other.

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14 Comments on King Candy’s Trademark Attempt at Crushing The Banner Saga

Shane Ramdhany

On June 24, 2014 at 9:11 am

The implications here suggest that a more informed evaluation process should occur when USPTO signs off on a trademark. The legal vs. moral dilemma is unfortunately an issue I read about all too often. Amazon recently blocked the sales of literature published by Hachette because Hachette took a stand against Amazon’s demand for a higher cut, affecting the authors supported by Hachette. As a result of such tension, Amazon restricting such sales could be construed as a scare tactic against other publishers who depend on the retail giant to support their authors. This example, further stresses the notion of how companies like King and Amazon flex legal muscle to get the result they want.

AxΣtwin

On June 24, 2014 at 9:26 am

Didn’t Bethesda try to sue an indie company because they wanted to call their game The Scrolls?

Chris

On June 24, 2014 at 10:42 am

@Axetwin

Yes, Bethesda sued Mojang for infringing on their trademark when they made a game called Scrolls. I don’t think this is so much Bethesda’s fault though as a problem with the system. If Bethesda doesn’t defend their trademark against one opponent then the legal system has the right to strip away their trademark power in subsequent disputes, because they proved that they weren’t actively defending their trademark.

So Bethesda didn’t have a problem with Mojang’s game but still had to sue them to show that they are defending what they perceived to be their trademark. So now if someone tries to make a game called The Old Scrolls: Worromind they can contest that actual trademark infringement without worrying about having their trademark stripped.

Cody Gough

On June 24, 2014 at 3:11 pm

Would’ve liked to see some specific examples of other games using the words “saga” and “candy” in their titles, but that’s okay, I can provide my own: Square has an entire Saga SERIES, dating back to 1989 and spanning 9 games: http://en.wikipedia.org/wiki/SaGa_(series)

And that’s just off the top of my head. King Digital is probably just mad that their IPO tanked, presumably based on the fact that their entire company relies on one single game for its success.

Grawlix

On June 24, 2014 at 3:28 pm

King does make a healthy sum of money from their “games of skill” website over at Royal Games (said games used to be all on King.com but I guess they didn’t want the housewives playing Candy Crush to realize the game they’re addicted to was produced by a company that preys on gamblers) so if that doesn’t tell you something about the people behind these games and actions I don’t know what will. For example a contest between two players where they both pony-up $.70 will result in the winner getting $1.05 the loser getting zero, and King getting $.35. Not a bad model . . .

Richard

On June 24, 2014 at 4:32 pm

Welcome to America.

Land of the corporate. Where the rich gets richer.

Sam

On June 24, 2014 at 4:36 pm

the king.

Bob Fossil

On June 24, 2014 at 5:26 pm

Why didn’t they just apply for Banner Saga and let the USPTO decide? King do not own ALL trade marks that have saga in them. As noted, a saga is a story. It is very conceivable that The Banner Saga would be considered different to Saga.

Ryan Morrison

On June 24, 2014 at 5:38 pm

@Bob Fossil: They DID apply for that and King filed an opposition to the application. USPTO didn’t have a chance to decide since King blocked it.

Daniel Irvng

On June 24, 2014 at 5:51 pm

An excellent read. I learned a lot from this and while I have always refused to play Candy Crush have a new found hatred for them. I’m looking forward to reading more from you good sir!

Thomas Bouwman-Wozencraft

On June 24, 2014 at 11:08 pm

I know it’s Tabletop and not Digital, but I’d like to see you guys talk about Games Workshop vs Chapterhouse, and the ramifications of that lawsuit and it’s appeal. It somewhat connects to this with a company overreaching and still winning due to money (See: Spots the Space Marine)

R.J.

On June 25, 2014 at 12:35 am

It’s cool that Gamefront is focusing on the legal aspect of gaming. I made it a point to study things like copyrights and trademarks in law school, so this is nice to see.

Firoze

On June 25, 2014 at 4:52 am

Thanks for the amazing AMA! :)

Annika

On June 30, 2014 at 12:12 am

Good read but a bit of a miss by the author imo to use the Apple example without mentioning that Apple is the king of foul play when it comes to the patent business which is a very related topic. (Just google “Apple patent” about once a week for a new example. Here’s one example: http://www.forbes.com/sites/edblack/2012/08/08/apple-samsung-rights-to-rectangles/)
Other than that, nice article. I think making people aware of companies who try to abuse these systems will help making at least some of them more uncomfortable with using this kind of approach. Hopefully, this awareness will eventually reach our courts and governments as well.