The gaming community recently put itself in an uproar over of King.com trademarking the word “Candy” in connection with their game “Candy Crush Saga”. King’s CEO stated that the company was simply seeking to protect its IP. Gamers and developers saw the trademarking of the word “Candy” as devious due to it being a commonplace term and should not be trademarked. The gameplay style of “Candy Crush Saga” also added to the controversy since it was a common play style of tile matching, a very popular casual game type. In protest of King’s actions developers came together to create as many games similar to “Candy Crush Saga” called the Candy Jam.
The Issue of Mark Category
Trademarks are categorized into ascending levels of strength: generic, descriptive, suggestive, arbitrary, and fanciful. These categories indicate the manner in which consumers associate the mark with the product. Marks in weaker categories are less likely to gain protection. So the issue here is in what category the mark in question belongs.
It is likely that there is a false-equivalence where the gaming community is associating the mark category with the gameplay of “Candy Crush Saga”. In truth, the gameplay has no effect on what category the mark belongs to.
So how can the mark be categorized? Most comment boards in the gaming community argued that “Candy” is more descriptive or generic, by nature of the word itself and the gameplay of “Candy Crush Saga”. The argument is that “Candy Crush Saga” is a game involving candy tiles so the mark is only descriptive, and without any secondary meaning connecting the product to the mark and the producer it should not be granted protection.
Considering the proliferation of tile-matching games this may be unlikely since it is fairly difficult to differentiate between those games. This, the community argues, would be grounds for not granting King the protection. However, since the gameplay does not have any effect on how a mark is viewed this argument fails.
Rather the mark should be understood as more arbitrary since the product is itself a video game and not a type of sweet treat, which is how “Candy” is commonly understood. “Candy” is a term that isn’t naturally associated with video games and bears no independent relation to video games. This is the position that King would take.
Thus they would be pushing their trademark rights in “Candy Crush Saga”, as in the case against “Candy Casino Slots: Jewels Craze Connect: Big Blast Mania Land” which was shown as “Candy Slots” in the app store, to prevent others from using “Candy” in similar ways as King uses it to prevent consumer confusion. The mark “Candy”, being used arbitrarily, would then be understood to be associated by consumers with King’s Candy Crush Saga product and, therefore, King would have earned the recognition necessary to grant protection.
Why is King Trademarking Candy?
There is certainly a factual question over whether “Candy Slots” infringed King’s trademark of the term “Candy.” The fact that both appear in the app store, which is the same marketing channel, is significant and would lend to the possibility of consumer confusion. What King wants to do is to prevent the possibility of confusion for the sake of their product. And King even pointed out that it will not try to enforce its trademark against everyone who uses “Candy.”
What about Other Developers?
While this seems like a heavy-handed way to protect legal interests this may not ultimately result in any harm to other developers. As indicated the mark has no relation to the particular content of the game so other developers will not be precluded from making any other candy style tile-matching games. They will only be precluded from using the mark “Candy” in a game title, or perhaps even as the name of a development studio, in such a way that would confuse consumers about the products and whether one or the other was King’s product.
So the Candy Slots developer is put between a rock and a hard place. Either take up the dispute against King or abdicate to their demands and make changes so as to prevent both litigation and consumer confusion. As described here Candy Slots’s developer went with the latter. This prevents an extended, expensive dispute between the two developers and neither is prevented from selling their respective products.
Ultimately there is nothing legally wrong with King’s actions. A game developer ought to be able to actively protect its IP. As Jas Purewal points out this is the foundation of trademark enforcement. If King can actively enforce its trademark then it may likely see more success as it can prevent other games from using exceedingly similar marks, which would prevent confusion and further distinguish the game among the many games available. All that’s left now is to see if any oppositions to King’s application are sustained by the United States PTO. The uproar against King’s actions is therefore largely misplaced.