By John Walker on January 21st, 2014 at 12:00 pm.
While the joys of Candy Crush Saga have only reached the PC in the form of a Facebook app, the implications of one of the worst decisions by the US trademark office affect developers on all platforms. They have, as of last week, decided it’s perfectly reasonable for owners King to trademark the word “candy”. And they’re trying to get “saga” too.
So it is that Gamezebo reports developers are now receiving threats that they must remove their apps or games if they have had the temerity to use this oh-so rare word in their product name. It’s the “edge” fiasco all over again, except this time with actual legal muscle behind it.
Trademark bridge-dwelling is disappointingly not uncommon. And it’s born of a genuine legal need that’s worked into the way trademarks work. You have to defend your trademark, or you lose control over it. Just ask Aspirin. Or escalators. Or heroin. However, this matter becomes idiotically twisted when it comes to a company trademarking a word already in common use.
Candy Crush Saga is, obviously, a phenomenon. Despite being fucking Bejeweled, King’s moment of genius was creating a generic match-3 game, but then making it difficult to play. Not difficult. Difficult to play. Employing the worst of the “freemium” model, the game is designed to make you want to fork out continuously as you tap at it, attempting to restrict your ability to play it unless the cash keeps flowing, or players willingly turn themselves into advertisers and begin pimping the game via social media. This leads to two groups of players: Those who empty their wallets into it and fill their timelines with requests for whatever nonsense the game needs. And those who smugly boast about how they haven’t spent a penny but continue to play, as if this makes them some sort of folk hero, when they could just be playing any other match-3 game. Or Puzzle Quest if they had any sense.
So King, in their very, very temporary position at the top of this most precarious of trees (apparently the global decision is to learn nothing from the folly and hubris of Zynga), sensibly need to protect their trademark. Their trademark is “Candy Crush Saga”. At a push, it’s “Candy Crush”. You can see why they don’t want some fly-by-night naughty releasing “Candy Crush Twist” and profiting from their reputation. Right, fine, that’s how the marketplace works. But “Candy”? No. That’s not reasonable in any conceivable way.
Unless you’re the US Trademark Office, who on the 15th January decided it was perfectly sensible to allow the word to be trademarked in relation to gaming, educational services and, er, clothing. The rationale being, there is enough of a connection between King’s product and the word “candy” that the two are immediately associated. Which is patently (geddit?) ridiculous. Sure, at the very, very temporary height of this game’s blip of popularity, you can imagine people would name it if asked for a game with “Candy” in the title. But long-term? It’s theirs long-term?
Candyz, released in 2007, is a… what’s this? A match-3 game in which you match different coloured candies into rows to make them disappear. What a novel idea!
And it’s already affecting developers, who are receiving instructions to remove their apps from various places, for having the SHEER GALL to use the word “candy” in their title. Benjamin Hsu, creator of All Candy Casino Slots, has been told to remove his app. When he challenged this, Gamezebo reports that King’s sharks responded,
“Your use of CANDY SLOTS in your app icon uses our CANDY trade mark exactly, for identical goods, which amounts to trade mark infringement and is likely to lead to consumer confusion and damage to our brand. The addition of only the descriptive term “SLOTS” does nothing to lessen the likelihood of confusion.”
And their actions will be successful. Hsu tells Gamezebo that he’ll have to change the name, since he can’t afford to defend himself legally.
King responded to GI.biz directly about the Hsu case, in which they state that his slot machine game is “infringing our and other developer’s IP”, and that “its icon in the App store just says ‘Candy Slots’, focussing heavily on our trademark.” Let’s compare those icons, Candy Slots on the left, Candy Crush Saga on the right:
Well it’s just uncanny, isn’t it?
Bearing all this in mind, King’s claim over the word “candy” in relation to gaming is unrealistic, and the US Trademark Office’s willingness to allow them demonstrates what a quisling body it is. The trademark they’ve allowed goes far beyond all computer games ever, as well. It includes every imaginable item of clothing, and every computer peripheral. It even extends to “Camcorders; Cameras; Cassette players; Compact disc players” and “Headphones”. Which should come as a pretty major shock to established international headphone manufacturers, Skullcandy. Founded in 2003, their name is heavily and immediately associated with headphones, indeed gaming headphones, in which they specialise. Will they too be receiving a call from King’s excited lawyers?
When it comes to clothing, that’s going to be something of a blow to Candy Clothing, and indeed, um, Candy Clothing. (These two might have something of a more realistic dispute on their hands.) Or Candy Plum, or Matalan’s Candy Couture, or Sugar Candy, and on and on and on. The point being, the idea that they have any claim over the word is utterly beyond all sense.
I would imagine that King are intending some sort of world-conquering Angry Birds-style plan, with Candy Crush Saga bath mats, vacuum cleaner bags and inner tubes, hence their attempt at ubiquity over the word so far out of the context of their own crappy game. They aren’t going to get it, since the game is first, not suitable for children, and second, lacking in iconic characters. Oh, and their game will be forgotten by 2015.
Things become even more insane with their attempt to trademark “saga” too. It’s currently “suspended” according to Trademarkia. King filed to trademark it in November 2011, but it currently seems to be in limbo. Rumours spread by George Broussard suggest that Stoic have been contacted by King’s lawyers regarding The Banner Saga, but we’ve no confirmation if this is true just yet.
Trying to kill off any other game with “candy” in the name won’t give them any advantages. Their game is already an astonishing success, generating frightening money. They do not need to crush indies who happened to use an incredibly common word in the title of their game, but will justify it with with the bollocks of “protecting their trademark”, as if there were some rational belief that the word “candy” was theirs to protect. And honestly, King are not doing anything unusual here. They’re a massive company dealing in vast sums of money, and as such are part of a system that draws such companies in to these practices. They didn’t trademark “candy” because they passionately believe it’s their identity, they did it simply because someone told them they can. A team of lawyers will have told them it’s possible, and so they did it. Now another team of lawyers is sending out threatening letters to small indie developers telling them to abandon their work (and potentially livelihoods), because they can. That’s what it comes down to. They can.
The thing is, they could choose not to do it. They could be a company that recognises the massive fluke of their success, is honest about the ridiculous nature of their having gotten rich off a game concept already released by a thousand others, and chooses to behave ethically in their own industry. They could sensibly recognise that they have no rights to a common word, and that even if unscrupulous copycats were to put “candy” in their title to try to piggyback on their success, it wouldn’t meaningfully dent their profits. They can and should trademark “Candy Crush”, and then do their best to make this a name as hideously ubiquitous as “Angry Birds”, because that’s their business. But when they cross the line of needlessly hurting the businesses of others, using their fortunes to behave in an unfair or cruel way, they become something terrible. They could have chosen otherwise.