Candy Crush Saga and Trademark Law
Candy Crush Saga and Trademark Law
There’s a huge controversy right now about Candy Crush Saga. Unfortunately it’s about trademark law, which for some people is confusing at best. I’ve seen a lot of misinformation about this case and trademark law in general, so I’m here to clear up a few things. Before I begin, I want to state that I’m not going to talk about the morality or ethics of trademark law and King’s actions, just the legality. IP law has numerous issues that I’d love to see changed, but that’s a discussion for a different time.
King does not actually have a registered trademark yet. Their trademarks are currently in the opposition phase where they can be challenged and overturned, so there’s still a chance that the process won’t be completed. They also are not suing Stoic, but attempting to block their registration of the trademark. Stoic will not need to change the name of The Banner Saga or pay King any royalties. Furthermore, the content of the games does not matter, as this is not a copyright dispute. Yes, The Banner Saga is nothing like Candy Crush Saga or any other King game, but Stoic and King are both trying to register the same word in the same class (specifically Class 009 video game products), and Stoic got there first. Keeping a trademark requires regular use and protection, so being this aggressive and trying to shut down every infringement is par for the course. Stoic can turn around and do the exact same thing to King for the exact same reason.
One of the main responses I’ve seen is that it’s absurd to trademark a generic word. In some contexts it is; Nestle can’t trademark ‘Candy’ because it’s a generic term in their industry. However, a term that’s descriptive, or at least distinctive to the industry can be used. To be considered distinctive the company needs to prove that consumers exclusively associate the mark with the company’s products or services. I’m not sure if King has been able to do this, as there are many other games with the words Candy or Saga in them. On the other hand, Candy Crush Saga has hundreds of millions of users per month, so it is possible that for many people the words Candy and Saga immediately makes them think of Candy Crush Saga (this is known as having a secondary meaning, which is vital to a trademark). These people are also impulse buyers, so they may buy any game with Candy or Saga in the title. That being said, they registered these trademarks in so many classes and several markets that they do not operate in so this could lead to invalidation.
For example, two different companies have trademarked the word Apple. In fact, they also had a few legal issues. Apple Corps is a music company started by The Beatles. They sued Apple Computer for trademark infringement, and settled out of court. One of the conditions of the settlement was that Apple Computer would not enter the music business, and Apple Corps would not enter the computer business. As long as they stayed as parts of separate industries, they could both use the trademark. So, Candy and Saga are both valid to trademark. (Apple violated this numerous times, first with the MIDI capabilities it was researching, and later with their iPod technology, but that’s beyond the scope of this article.)
Now, what if this was to change? What if the trademark becomes generic due to overuse? In this case, the trademark is called a genericized trademark, and the company may lose the trademark. Examples include Hoover, Jell-O, Heroin and Kleenex. These are all brand names, but are so commonly used that they’ve become common household terms. Many companies try to avoid this; Xerox had an extensive campaign to advertise how you can use their products to make a photocopy, while deliberately avoiding the word Xerox. It’s possible that King is trying to stop genericization of their trademark through legal means.
As for what will happen between King and Stoic, there are numerous possibilities. It’s most likely that Stoic will settle out of court and enter a coexistence agreement (similar to the Apple example above), where King will allow Stoic to use the brand but in a limited fashion. I’d expect that Stoic would be required never to entire the casual mobile marketplace, and King would agree not to make RPGs. They could also license the name out, but if they do that too much they run the risk of having their trademark become generic. It’s referred to as “naked licensing”, where the licensor “fails to exercise adequate quality control over the licensee.” Licensing the trademark to anyone means that the trademark can no longer identify a specific company in a market, so the trademark becomes useless.
If you still have any questions, or feel that I’ve made a factual error, please leave a comment below and I’ll try to respond to them as quickly as possible.