Posted on June 24, 2014, Ryan Morrison 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.