3 February 2014

What words can you trade mark? King, Candy and the developer uprising

Today is the closing date for Candy Jam: a protest against the trade marking activities of games developer King.com.

King is well-known for the game Candy Crush Saga, but has angered the developer community by registering the word "Candy" as a Community Trade Mark (which protects use of the mark across the whole of the EU) and also applying to register the mark in the US.

Contrary to some reports, it is not the fact that King is seeking trade mark protection for a common word that has provoked the uprising.  After all very many common words are used as trade marks, but not - and this is the important point - for goods or services which they are descriptive of.

For example, you can register Apple for computers, but not for fruit; Sandals, for a holiday company, but not for shoes; and Strongbow for cider, but not for a medieval weapon. 

"Candy" has been registered by King in the EU for a variety of goods and services, including computer games, clothing and entertainment, but not confectionery.  So there is nothing inherently objectionable in King's registration.

Candy Jam say as much when they state on their website:
"Is trademarking common words that ridiculous?  In a perfect world, maybe not.  It's only about protecting intellectual property while saving money for both the company and the government."
What they object to is the fact that some games which King is seeking to protect with trade marks have allegedly copied elements from or are "clones" of other games.  They also object to a perceived heavy-handedness by King in policing its trade mark portfolio (it is currently opposing an application by another developer to register "Banner Saga" as a US trade mark).

In response, King's Chief Executive, Riccardo Zacconi, has published an open letter on the company's website.   Zacconi admits one limited instance of cloning but otherwise defends the company's intellectual property strategy, "to ensure that our employees’ hard work is not simply copied elsewhere, that we avoid player confusion and that the integrity of our brands remains."

Zacconi welcomes discussion and debate about the issue, and Candy Jam's protest has stimulated plenty of that. 

Registering trade marks is a legitimate strategy to protect intellectual property, but there is no point in pursuing it unless you are prepared to take action to enforce those marks when they are infringed.  What Candy Jam has demonstrated, is the potential negative publicity and misinformation that such enforcement action can generate.

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