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Candy Crush Saga Trademarks the English Language; Goes After "The Banner Saga"


by: Edward Garris

Fri Jan 31, 2014 at 01:00 PM CST


Candy Crush Saga.  It's addictive.  It's ubiquitous.  It's apparently also litigious.

According to multiple sources, as well as filings with the U.S. Patent and Trademark Office (USPTO), King.com, the makers of Candy Crush Saga, is attempting to secure a monopoly on parts of the English language.  

According to online mag Kotaku, Stoic applied to the USPTO for a trademark on "The Banner Saga," a game it produces. No big deal, right?

Wrong.  

According to the Kotaku piece, on December 27, 2013, King.com filed a Notice of Opposition with the USPTO to block Stoic from securing a trademark on the name of its game, "The Banner Saga."  The filing by King.com alleges that "The Banner Saga" is "confusingly and deceptively similar" to the use of the word "saga" by King.com in Candy Crush Saga and other games and would create a "likelihood of confusion in the marketplace" and damage to King.com.

To see which words they're fencing off, read below the jump.

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CANDY vs. VIKINGS...OR SOMETHING...

Confusion in the marketplace?  Let's be clear.  The Banner Saga is, according to its own maker's website:

"The Banner Saga is an epic role-playing game inspired by Viking legend. Hand-painted landscapes portray a world eerily suspended in perpetual twilight. Cities and towns begin to crumble into chaos. Heroes abandon their hearths and homes to traverse the snowy countryside, gaining allies along the way to help battle a strange, new threat.

Decisions have consequences; wise choices must be made when conversing with possible allies during intricately crafted dialogues. Turn-based strategy brings tactical challenge in hand-animated battle sequences. With visuals evocative of the golden age of animation, The Banner Saga brings skillfully crafted art, story and strategy to gamers waiting to re-experience classic adventures and tactics."

Candy Crush Saga is about....candy.

Mm-hmm.  From here on out, we'll call the game CCS - you can't be too careful these days.

Why would the maker of CCS do this?  The Domains has its own answer.

"It is worth noting that King.com makes roughly $700,000 a day and is worth billions according to Read Write, they are also highly dependent on Candy Crush Saga so they are pulling out all the stops to keep their company at the top of the market."

Erik Kain at Forbes.com weighed in with his take:

"No corporation should have legal rights to any word I can use in Scrabble-words like "candy" or "saga" for instance.

The very notion is crazy and dangerous, to creativity, to business, and to the very act of communicating with one another."

King.com insists it's not trying to hinder use of the term "The Banner Saga;" rather, it's just trying to stop other people securing their own legal protections.  As published by Forbes.com, King.com released the following statement:

"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 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. This is an important issue for King because we already have a series of games where "Saga" is key to the brand which our players associate with a King game; Candy Crush Saga, Bubble Witch Saga, Pet Rescue Saga, Farm Heroes Saga and so on. All of these titles have already faced substantive trademark and copyright issues with clones."

The law made us do it.  

STARBUCKS DOES IT; WHY CAN'T WE?

But does it make sense?  Strangely it does.  Starbucks engaged in similar villainy late last year as well. In that case, they went after a bar that served a beer called a "Frappicino."  In context, Starbucks going after a local, independent brewpub because customers might get confused that the beer in their hand is not, in fact, a Starbucks product, seems ridiculous. However, from a risk analysis perspective, it makes perfect sense for them to bully an independent.  Here's how.

Imagine two scenarios - one with a trademark violation, and one without.  In the first scenario, there is a trademark violation.  The bigger party sends a letter to the offender, and there are two possible outcomes: first, the offender stops the violation, and the problem is solved at minimal cost.  The second outcome is that the offender does not stop, and the larger party has already - at minimal cost - taken the first required step to initiate litigation to stop the violation.  They then pursue litigation.

In the second scenario, there is no trademark violation.  The larger party sends the letter anyway.  The non-offender, intimidated by the size and power of the large party backs down because they don't have the stomach for the fight.  The larger party wins a fight at minimal cost.  In the last possibility, the non-offender doesn't back down.  They don't think they've done anything wrong, and they don't care.  The larger party will have to fight this one and in a perfectly fair system will lose.  Of course, because of their massive resources, they could win, justice notwithstanding.

In three out of four scenarios, the larger party claiming trademark rights wins.  (They even have a good chance of winning in the fourth).  So, for the larger party, it makes sense to have a blanket policy of defending their trademarks and doing so at marginal cost - sending out letters without doing a thorough investigation or analysis. The risk of them being wrong is one out of four, and the cost of them being wrong in that one time is marginal and outweighed by the benefit of being right in at least three out of four scenarios.  

So it appears with King.com.  Or, as The Domains wrote, it's not just risk analysis, but an eye to $700,000 per day.  

And lest you think that this is the first time that the makers of CCS have attempted to use trademark law as a tool of the absurd, let us note that according to Kotaku, last year, the maker of the game filed a trademark application for the word "candy."  And it was approved.



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