Explaining the Candy Crush trademark saga

Craig O'Callaghan examines the law behind a recent mobile gaming controversy
Commercial awareness

Not since the days of Snake *and black and white phones has a mobile game entered the zeitgeist quite like *Candy Crush Saga. It's virtually impossible to board a train, tube or bus and not walk past someone playing the game; hardly surprising given that, as of November last year, the game has been installed 500 million times across Facebook and mobile devices.

Recently, it was announced the company behind the game, King, had trademarked the word "candy" in an attempt to protect its intellectual property (IP). Plans are also seemingly being made to trademark the word "saga" and specific elements of the game such as the shapes of the candy pieces and the word "tasty".

Why a trademark is necessary

By applying for a trademark, King are hoping to prevent other games developers from putting "candy" in the name of their product. Due to the popularity of King's game, rival developers may decide to do so in order to attract more attention from consumers.

The news that King wish to restrict the use of such a common word as "candy" has been criticised by some developers, but David Stone, a partner at law firm Simmons & Simmons who specialises in IP law, points out that King's trademark follows an established precedent.

"You can register an ordinary word as a trade mark as long as what it relates to isn't actually that thing," says David. "For example, 'apple' can't be registered in relation to fruit, but is registered in relation to computers. Registering 'candy' in respect to computer games is in many ways no different to a lot of other trademarks."

Enforcing trademarks online

Trademarks are usually limited to individual countries, the main exception being a European community trademark which is shared across all 28 EU member states. As a result of this, businesses need to obtain a trademark in each geographical region they wish to protect their intellectual property.

This becomes more complex when the product which is being trademarked solely exists in the online environment. "The courts have decided that a website which is accessible in a country will only infringe IP laws in that country if it is targeted at residents of that country," David tells us. "If a website only lists prices in US dollars, only gives US contact information, and only offers services within the US, an English court would say that English law cannot be infringed as the site is not aimed at UK residents."

However, the fact Candy Crush Saga is available to download within a country doesn't necessarily prove that it is specifically targeting an audience in that country. Courts would require further evidence; for instance, in the UK, the price of the download would need to be listed in sterling and the game would need to use English spelling rather than American.

Disputing a trademark

King's legal actions have stepped on the toes of other games developers, most notably the indie studio Stoic whose attempt to trademark the name of their Viking strategy game The Banner Saga has been challenged as King wishes to trademark "saga" itself. Many of the companies King is accusing of trademark infringement are too small to afford legal action.

"If your new app is accused of trademark infringement, it's probably easiest to just change your name," says David. "Online app stores have developed very efficient takedown procedures to help rights owners so offending content will be quickly removed."

However, King's trademark might not be able to completely prevent imitators from entering the market. "A trademark is not infringed if it is used descriptively," explains David. "It's why a novel can mention an Apple computer without infringing trade marks. So, if a game developer created a game where the player catches falling sweets and they called it "Catch the Candy", I believe it wouldn't infringe the trademark, so long as it was done honestly."