Crush your candy or swipe it, this trademark saga is over. King.com, creator of the ever popular time-sucking mobile/Facebook game Candy Crush Saga, has settled disputes with Stoic Studio, maker of the game The Banner Saga, and Runsome Apps, developer of the game CandySwipe. The disputes arose in so-called “Opposition” proceedings filed in the U.S. Patent and Trademark Office, in which King sought to prevent Stoic’s registration of The Banner Saga and Runsome sought to prevent King’s registration of Candy Crush Saga. The disputes received a fair amount of publicity, much of it critical of King.
The coverage made clear that the differences between copyright and trademark are widely misunderstood. Many accused King of trying to have a “monopoly” on the words “candy” or “saga” by pursuing and trying to protect its trademark. But King was trying to make sure that its branding and trademark of its game that uses those words remained strong. I’ll leave the discussion of the differences between copyright and trademark for another post. Here, I want to point out two important things highlighted by these disputes for game developers to keep in mind.
Research is King?
First, the best way to avoid the kinds of disputes that took the time and money of King, Stoic, and Runsome is to make sure that your game’s name is unique (try to avoid commonly used words and descriptors.) Do everything in your power to make sure that your game’s name can’t be confused with the name of any existing trademarked game name. That means doing a thorough search before releasing your game. Don’t be penny wise and pound foolish. While these searches can take some time and do cost money in attorney fees and database access charges, they don’t cost nearly as much in time and money as a later trademark dispute would cost. It’s worth the effort to do this work up front.
Protection = Revenue
Second, once you have your trademark, you must protect it. New games with similar names can confuse consumers and make a significant dent in revenue. This means making sure that you send takedown notices when games appear that you have reason to believe are or will be confusing to consumers. It also means monitoring trademark applications in the appropriate category so that you can file timely objections. It may sound aggressive, but failing to take those steps could render your mark unenforceable, leading to an avalanche of copycats, particularly as your game reaches a certain level of success. The resulting loss of revenue from an unenforceable trademark would be far more costly than the money and time spent taking these steps to protect your trademarks from the outset.
These two simple steps can help you avoid a trademark protection saga and lead to some sweet rewards.