Jan 23, 2014
Editor’s Note: This piece solely represents the opinion of the author.
There’s a big difference between doing what is legal and what is right, and King, though they may be in the legal right with their trademarks for “candy” and “saga” that they have registered, proof that they are in the moral right is not forthcoming.
For those who haven’t followed King and the candy trademark saga of the past week, here’s a short rundown:
Gamezebo reported that King is trying to trademark the word “Candy” in reference to video games and other products, and is threatening other developers who use the term “Candy” in their titles.
As well, it was revealed that they have filed for the trademark for the term “Saga” and are opposing the trademark application for the game The Banner Saga, which is about vikings – and not a casual puzzle game.
A screenshot of The Banner Saga. As evidenced, not Candy Crush Saga in the slightest, but seemingly, that is legally irrelevant.
Now, as Polygon’s article on the issue points out, trademark holders have a duty to protect trademarks or else they can lose them. “Aspirin” used to be a brand name in the US, owned by Bayer, until it fell into common use as a genericized term and now anyone can legally use the word aspirin. King themselves have used this defense in a statement on the opposition to The Banner Saga trademark.
And even this isn’t anything new: plenty of other generic words have become copyrighted in specific instances. Apple is a good example. Even Android is a trademark of Google. But that doesn’t mean that Apple can restrict the use of the word “apple” to describe the fruit, or for companies outside their business, and Google can’t restrict the word android to mean a humanoid robot. Trademarks are not unlimited. But for games, they often do represent the entirety of gaming, even though the games King makes are different from what other companies make.
It’s all a complicated situation, but King deserves at least some credit for having released statements regarding these issues. But there are two reasons why there should not be any tears shed for King, and why developers are being hurt:
King’s goal has been quite explicitly to make money and a lot of it. Their games are designed in such ways that they are meant to be popular and to allow players to spend unlimited amounts of money. And spend they have. Candy Crush Saga has been one of the most lucrative games of the past 12 months across iOS, Android, and Facebook. King quite simply wanted to be in this situation where they would be so popular that they would have products others would want to exploit for their own financial gain. They made this bed they’re lying in now.
The other thing that being rich and successful provides is the opportunity to pay for lawyers – good ones at that – and have them be merely a drop in the bucket in terms of expenses. Compare this to the average financially-solvent independent developer that has merely a barebones legal budget if anything. They can’t fight King. This allows King to effectively enforce their will merely by existing.
See the case of Rocketcat Games’ Wayward Saga. They may have to change the name of their upcoming game solely because they feel like they could not fight King’s lawyers.. And King is legally compelled to do so.
And the name change comes at a cost: their game has been reported on as being Wayward Saga. They’re now causing brand confusion before release. This impacted Vlambeer, where they changed the name of their early access game Wasteland Kings to Nuclear Throne due to potential trademark confusion with InXile, creators of the Wasteland series. This came after its highly-publicized announcement as Wasteland Kings.
Anecdotally, I have discussed Nuclear Throne with multiple people who follow gaming, but they didn’t know what I was referring to until I let them know it was formerly Wasteland Kings. While this issue has smoothed out over time, it was a problem.
But here’s the thing with the Wasteland Kings situation that King has yet to do: InXile reached out to Vlambeer in a personal level to let them know their concerns. And Rami Ismail said it best: “We’ve been through a lot of trouble with people riding on things of ours, and we understand that American trademark law is pretty strict in that not defending a trademark weakens it. We realize that both games are set in a similar setting, that the names are similar and that InXile obviously felt the need to reach out. Although we aren’t sure Wasteland Kings and Wasteland are confusing enough for this to be an issue, both us and InXile really don’t want to spend development time on arguing over trivialities.”
“Most of all, we appreciate that the first contact between us was by a normal employee, and not a lawyer. There was no extravagant Cease & Desist-letter, nor a threatening letter in an envelope labelled ‘URGENT’. The e-mail we received was short, amicable and to-the-point. It was followed up by a quick conversation on Skype, in which we established that it would be the right thing for us to change the name.
This is the way business should work nowadays: between people, not companies, not lawyers, not departments. There’s so much paperwork between one and another that it’s easy for people to forget that they’re dealing with people instead of numbers and dossiers. Things can be friendly, rather than formal for the sake of formality.”
And that’s how King needs to approach this, not just as the billion-dollar corporation that solves its problems with lawyers and statements to the press, but as humans. Yes, they have valid reasons for defending terms like “Candy” and “Saga”, especially the latter which is used as a brand by them for multiple games. But trademark coexistence agreements do exist. And King could take steps – and public ones at that – to balance their duties of defending their trademark against actual scammers, while allowing for reason to rule the day.
No one will confuse The Banner Saga or Wayward Saga with Candy Crush Saga. So King could instead make sure that those games can exist, while also protecting themsevles from the actually malicious.
It can be done. And King, by being a company that wanted to become rich and powerful – and succeeded – has no reason to not dedicate some resources to be a good citizen, instead of using lawyers to solve everything.
Uneasy lies the head that wears a crown, King. And right now, that is the head of a misguided tyrant, threatening those who do not truly stand in their way. But it’s time to become a benevolent monarch. Trademarks are important and have valid uses, but legality and morality are entirely different things.