Welcome to Legal Geek, a segment investigating current events where the geek world and the legal kingdom collide. I'm David Fitzgerald, your host and a licensed attorney practicing IP law. This week, we investigate whether trademarking the word Candy is a bad thing.
https://archive.org/details/LegalGeekEp01
Like many successful game developers, King.com has applied for various intellectual property protections to cover its games, most notably the Match-3 sensation Candy Crush Saga. These include trademark applications for the full game name Candy Crush Saga (Appn. No. 85566839), as well as the game logo (Appn. No. 85966584), and partial portions of the name "Saga" (Appn. No. 85482736) and "Candy" (Appn. No. 85842584).
When the U.S. Patent and Trademark Office determined this week that the application for the trademark on "Candy" by itself would be allowable, gaming media outlets as well as some national media exploded about the story. It seems the general consensus of other game designers is that King is being incredibly greedy by achieving an allowed trademark on such a simple term.
And indeed, in what looks to outsiders like a trollish move, King has already reportedly sent Cease and Desist letters to other companies with game apps on iTunes, asserting currently existing common law rights as well as the potential upcoming federal trademark registration. But is this trademark inherently bad or improper?
Trademark law is designed to protect goodwill a company develops in the marketplace, and there's no doubt King has generated a ton of consumer goodwill with Candy Crush Saga. Plus, one search of the word candy on iTunes shows a ton of knockoff games trying to coattail or steal some of the Candy Crush success. That is precisely what King is entitled to stop, at least within reasonable bounds.
However, just obtaining the trademark does not mean victory in court, as King would have to prove what is called a likelihood of confusion for potential consumers in the relevant markets before winning in court. This is a highly fact-based analysis that can involve actual consumer surveys, and proof can be hard to come by in today's saavy-consumer marketplace. Thus, even if the trademark is registered, King may only really be able to use this to scare away truly illegitimate knockoffs and competition.
Furthermore, this initial allowance does not mean a registered trademark will actually happen. The mark Candy will be published for opposition in a few weeks, and it seems likely that other companies with candy-based products will file oppositions to hold up final allowance and registration. For example, there are 76 other registrations for Candy or Candies in various fields which may overlap enough with King's goods and services. Indeed, King's other important marks Saga and Candy Crush Saga are still locked up in oppositions or suspension proceedings right now as well.
Even if the trademark finally registers, King has a limited number of classes of goods that they can try to exclude others from using the word candy in. These include computer game software, clothing, and video game entertainment services. Plus, only the name is protected by trademark, as the underlying game design and software would need to be covered by patent, which is ridiculously tough in the game design field, or copyright, which is a very limited type of protection. For example, a knockoff called Sweets Matching with much of the same candy-matching mechanics would not be something King could stop, even with a granted trademark.
Bottom line, this trademark, even if allowed, provides a limited scope of protection even for what looks like a broad word. This small protection will protect King's investment and development of what became a superstar app, which is the dream for all game designers. Thus, despite the flogging King is taking in the media, a registered trademark on Candy is not the end of the world.
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