In an excellent article on Rock, Paper, Shotgun John Walker describes how the trollish move is already affecting many small developers. While the onus would be on King to prove any allegations of intentional brand confusion, they still effectively can force these smaller developers to submit to name changes or removal because they know an individual has far less time and money to hire a lawyer and risk getting taken to court.
One noteworthy victim of King's rotten fear-mongering is Stoic, developers of The Banner Saga. You'd have a hard time finding a game less like Candy Crush Saga, but on the basis of one word alone they have nonetheless been threatened with legal action from King's lawyers. Candy Crush is a colorful match-three puzzle game, while Banner is a viking-themed role-playing adventure. And yet, King finds there to be uncomfortable similarities between the two, somehow -- at least, enough to legally oppose their own file for trademark.
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| My god, it's uncanny! Or is it... uncandy? |
King's justification is unsurprisingly flimsy and pedantic, but also basically an admission that they have no case:
King has not and is not trying to stop Banner Saga from using its name. We do not have any concerns that Banner Saga is trying to build on our brand or our content. However, like any prudent company, we need to take all appropriate steps to protect our IP, both now and in the future.
In this case, that means preserving our ability to enforce our rights in cases where other developers may try to use the Saga mark in a way which infringes our IP rights and causes player confusion. If we had not opposed Banner Saga’s trade mark application, it would be much easier for real copy cats to argue that their use of ‘Saga’ was legitimate.
How do you take legal action against someone for infringing on your trademark, while in the same breath admitting that you don't have any concerns about it? To me, that seems to require an extremely potent blend of greed, cynicism, and a cavalier penchant for abusing the most rotten and diseased aspects of trademark law for selfish interests. Companies like this just love twisting the letter of the law, while blatantly stomping all over the spirit.
Some might argue that for a company to maintain the right to protect their trademarks later, they must show an earnest effort to consistently defend against infringements. I don't buy this for a second, because in this case (and others) they are not going after actual copycats or rip-offs of their products whatsoever. No one is going to make a clone of Candy Crush Saga, and steal their name, then successfully defend themselves with "Oh yeah? Well, you didn't sue The Banner Saga years ago, therefore you don't own anything." No court would buy that. But then, most of these cases won't go to court. King's lawyers will continue to intimidate individuals with baseless threats, and succeed, simply because they know the little guys can't afford to call their bluff.
Consider, also, just how many video games are out there which share identical words. Did Nintendo sue Capcom back in the NES days for the similarities Duck Tales had to Duck Hunt? Both were duck-themed video games with the same word in their title. And yet, no confusion between the two was suffered by anybody, and no legal battle was necessary to protect any trademarks. Resident Evil co-exists with Evil Dead, as does Super Mario Brothers with Super Meat Boy. Or for that matter, House of the Dead, Left 4 Dead, Dead Island, Dead Rising, Dead or Alive, or The Walking Dead. As for myself, I'm rather a fan of Dragon Quest, Dragon Age, and Dragon's Crown. I tried Dragon's Prophet recently, and have been meaning to get my hands on Dragon's Dogma. I wonder how any of these companies can all get along, without trying to claim commonly-used words as their corporate property? Maybe they actually have a shred of decency, and a sense of shame?
What makes this even more of a joke is that King's Candy Crush Saga isn't even a remotely original game. It's an obvious rip-off of Bejeweled and any number of countless match-three puzzle games. Have you seen some of their other products? These people couldn't muster an iota of creativity to save their lives. They just steal trite, pre-existing game ideas and monetize them for disgusting amounts of profit. The notion of them turning around and pointing fingers at copycats now is the very zenith of hypocrisy.
One of the few bright spots in this mess is that gamers across the internet have taken notice of King's slimy tactics and are feverishly collaborating on a game-making competition called Candy Jam. From now until February 3rd, indie game makers are hard at work creating as many games as possible using the terms "candy" and "saga," just to stick it to King and create awareness of the problem. Other terms that have been needlessly contested in recent past, including "scroll," "memory," "edge," and "apple," are also encouraged. Personally, I am rather enjoying following the #candyjam hash tag on Twitter. Kotaku had a nice piece about the movement, highlighting some cute entries.
Trademarking a specific phrase as it relates to a title or product name in a given medium -- that I can understand. If they want to own the right to call a game "Candy Crush Saga," I am obviously behind that. But when a company wants to own the right to use a single word anywhere in a title -- a word they had no part in creating or popularizing whatsoever, and which has already been in common parlance for centuries -- that is downright detestable. I already had no desire to take part in King's shoddy games on the basis of quality, but now it seems I have a moral objection as well. I'm just appalled.
Here, here! It's absolutely disgusting how American copyright law even allows this kind of frivolous copyrighting to exist in the first place.
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