King Candy’s Trademark Attempt at Crushing The Banner Saga

Stoic has resolved things peacefully with King and is being allowed to use its chosen name, but is not able to register a trademark to protect its own brand. Basically, King is allowing The Banner Saga to exist (with that title), but really, King shouldn’t have had any say in the matter. (Note: The facts of the agreement between King and Stoic Studio were confidential, so this take on things is strictly from my point of view.)

Normally, we would fault the United States Patent and Trademark Office for not knowing the difference between a mobile game and a Steam game. After all, it’s their job to evaluate the marks and prevent “consumer confusion,” or the idea that a gamer wouldn’t be able to tell one game wasn’t from the other company. It’s also the USPTO’s job to know saga is clearly a descriptive term, which was another big miss on their part. But when you see King’s other applications, it’s much easier to keep my finger pointed squarely at them – they seem to have a history of overreaching with their trademarks. Its trademark covers things ranging from “lifesaving” equipment, to “regulating or controlling electricity.” Yes, King thinks lifesaving equipment called “Saga” might lead you to think you were accidentally playing a smartphone game. Remind me not to ask for their help if I’m dying.

But fine, I’ve seen overreaching trademarks before. Just because King’s trademark applies to lifesaving equipment doesn’t necessarily mean the company is going to create problems for people trying to brand their actual lifesaving equipment. It’s much more about how trademarks are used, whether it’s to truly protect the company’s brand, or to troll an innocent community. Basically, owning a trademark allows you to tell someone else to stop using the word you have protected or face a very damaging lawsuit. Companies can wield this power as a shield, defending their brand from impersonators, or as a sword, swinging it wildly at anyone and everyone who comes even close to their mark.

Looking back to what happened with The Banner Saga, you can see King does the latter. “Saga” is a Norse word for “epic” or “long story.“ It’s a descriptive term used throughout not only gaming history, but storytelling in general. And if you remember from our Apple example above, no one is supposed to be able to trademark a descriptive term. Further, no game deserves to use the word “saga” more than one about Vikings! Instead, we have a cartoony puzzle game being able to say, “Nope. It’s ours.”

While the drama between King and Stoic was going on, another company called Runsome Apps was fighting its own battle against King, claiming Candy Crush was a rip-off of “Candy Swipe,” a game Runsome had put out two years earlier. Whether that was true will never be known, because instead of defending Candy Crush on its own merits, King just went back and bought an even older trademark called Candy Crusher. Yes, instead of trying to prove to the world its game was not a clone of someone else’s take on the match-3 genre, King just spent some of their limitless bank account and bought the oldest “candy” trademark they could find. That’s it. King wins.

Unfortunately, what’s permissible legally is not always what is right morally. Here, King clearly showed which path it leans toward. I know the Internet was outraged when King blocked Stoic’s trademark, and I know the gaming community called foul. But, like with most things, we forget and move on. Let us remember this treachery, and remember it loudly.

Because King won’t forget the power it has been allowed as it holds its sword to the throat of the gaming community. It let The Banner Saga live in chains, but what about the next developer who dares to use a word that King deems to be its own? How do you comfortably put a game into the market place, knowing you can be bullied around with absolutely no warning? The precedent set here allows for the companies with the biggest bank accounts to roll over everyone else, and that is a scary thing.

Crush the “Saga” mark, please.

Bar Games is a collaboration between Ryan Morrison, a practicing attorney in New York specializing in video game and technology law who is often found answering gaming legal questions on Reddit as “VideoGameAttorney” (Follow him on Twitter!) and Janelle Bonanno, GameFront’s Editor-in-Chief, a recovering intellectual property attorney who is somehow still licensed to practice in New York and New Jersey (Follow her on Twitter!).

Check out our next Bar Games Feature on false advertising, Aliens: Colonial Marines, SimCity, and your wallet.

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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.