Candy Crush Maker King isn’t the First to Creatively Gain Trademark Advantage

The game Candy Crush Saga has dominated headlines lately, but not for its addictive gameplay. Instead its developer, King, has been involved in a number of altercations involving trademarks. Each seems a bit stranger than the last.

The latest one involves a maneuver that we don’t see every day. It’s not exactly unprecedented, but certainly uncommon.

Trademarking “candy” and “saga”

After it released its game, King filed for trademark protection of Candy Crush Saga. Their trademark application includes both a name and a logo filing. They filed their logo application for no less than 15 different classes of goods and services, too, far beyond the scope of a simple video game.

The USPTO has yet to register King’s trademark on the name Candy Crush Saga, despite publishing it in the Official Gazette in March 2013. That’s because another game developer filed an opposition against their trademark application. But more on that in a moment.

Although King does not yet own full trademark rights, it has taken a few actions to assert its alleged rights.

1) When Stoic Studios applied for a trademark on its game, The Banner Saga, King opposed based on the usage of the word “saga”. This might seem absurd to most people, since the word “saga” is quite common. Many video games, some decades old, use the word in their titles.

2) When King received trademark rights in the EU for the word “candy,” it enlisted Apple to start removing candy-named games from the App Store. This raised the ire of many game developers, especially those whose games bear no similarities to Candy Crush Saga.

The case of CandySwipe

Again, King has not received trademark protection in the U.S. for Candy Crush Saga, because another company has filed an opposition against their trademark application. Albert Ransom created CandySwipe in 2010, two years before King released Candy Crush Saga. Like a smart businessman, Ransom applied for trademark protection after release. The USPTO registered his mark in July 2011.

When the USPTO published the Candy Crush Saga trademark in March 2013, Ransom filed an opposition against the Candy Crush Saga trademark application. The two sides have gone back and forth, but the situation seems pretty ironclad. King has a difficult case, since Ransom already owns the trademark to CandySwipe as it relates to video games.

According to a letter Ransom recently published, King could successfully petition the USPTO to cancel Ransom’s trademark. How can that be?

Because King supposedly made a savvy purchase.

Ransom alleges that King purchased an existing game, called Candy Crusher, that predates both Candy Crush Saga and Candy Swipe. That would seem to be just the acquisition King needs to prove its case, right?

Perhaps not.

For starters, Candy Crusher is not a trademark officially registered with the USPTO. The only listing for Candy Crusher (considering multiple spellings) is a filing from nearly a year after King’s. The owner might, however, have common law trademark rights.

A number of games called Candy Crush and Candy Crusher appear in Google Play, but those are mostly part of a developer campaign against King’s trademark practices. It appears that the Candy Crusher in question comes from Ibis Software Productions. They published the game in 2008, though they have not updated it since October 2012. Ibis Software Productions has not filed a federal trademark, but it could claim common law trademark rights.

Ransom does claim that King infringed on his intellectual property, noting the aspects of CandySwipe that appear in Candy Crush Saga. This would represent a different case entirely, especially since, as Ransom notes, Candy Crusher bears no resemblances to either his or King’s games.

Apple’s iPad trademark campaign

By 2009 Apple was pretty far along in developing its tablet, but it hadn’t yet named it. The tech world hungered for details not only about the device itself, but the moniker. At points it seemed as though people were more interested in the name than a potentially revolutionary computer.

For a long while, Apple itself didn’t know what it would call the tablet. Surely the signature “i” would appear before it, but beyond that speculation ran rampant.

In December 2009, just months before Apple announced the tablet, a bit of trademark news broke. A company called Slate Computing owned the trademark to iSlate, but a little digging revealed that Slate was a shell company that Apple created in order to obtain trademark rights.

Setting up a shell company to obtain trademark rights is nothing unusual. Companies typically do this to avoid potential leaks, since trademark filings are public. But in hindsight it appears iSlate might have been Apple’s backup plan.

As we learned many years after the fact, a company beat Apple to registering the name iPad in a number of Asian and European countries. Apple did set up another shell company — the cleverly named IP Application Development — to acquire the rights from Proview International, which had claimed the trademark earlier in the decade.

Apple hit two hitches along the way. First, Proview sued Apple, claiming it did not know that IPAD was an Apple shell company. Second, and more significantly: China refused to transfer the trademark rights to Apple. A long court battle ensued, with Proview eventually getting $60 million for the sale of its trademark rights to Apple.

Companies will go to great lengths in pursuit of intellectual property rights. Whoever holds those rights gains considerable power against any and all competitors.

Few people asked whether Apple was right using shell company tactics to acquire the rights to the iPad name. Many more will likely ask that question of King, however.

Xavier Morales, Esq.

About the Author:

Xavier Morales, Esq.

Mr. Morales founded his trademark law practice in January 2007 with the goal of providing intellectual property expertise to entrepreneurs and businesses around the country. Since then, he has filed more than 6,000 trademarks with the USPTO. You can learn more about Xavier here.

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