Candy Crush Saga 2: Electric Trademark Fight Boogaloo
Yesterday we tipped you off to the fact that soon you won’t be able to say “candy” because thugs from Candy Crush will come break your legs. OK, not quite, but they are cease-and-desisting all over since they trademarked “candy” for clothes and video games. The good folks at Candy Crush want you to know that it’s totally cool, though, because JUST LISTEN ALREADY OK??
Seems like Candy Crush thought it was unfair that we noted that they had trademarked all possible items of clothing (and eyeglasses! do not forget eyeglasses!) and a pile of videogame-related things here in the good old USA, so they sent us this very official statement:
We have trademarked the word ‘CANDY’ in the EU, as our IP is constantly being infringed and we have to enforce our rights and to protect our players from confusion. We don’t enforce against all uses of CANDY – some are legitimate and of course, we would not ask App developers who use the term legitimately to stop doing so.
Hmmmmm…let’s break this down law-stylee, shall we?
First, it’s lovely, dear Candy Crush people, that you trademarked “Candy” in the EU, but the story currently rocketing around the internet is that you trademarked it here in the good old US of A. So we’re kinda not sure what that has to do with anything, but thanks for playing.
Next, you let us know that you don’t enforce against all uses of “candy” because some are legitimate, which would make sense if any game developer could possibly ever guess ahead of time what you might feel is infringing on any given day. That is not a super fun thing for game developers to try to figure out! Nor is it a good promotion of commerce generally if you’ve now terrorized everyone into not making candy-themed or candy-named games because you’re going to be capricious about what you enforce.
Also, too, there’s this funny little thing about trademarks: if you don’t enforce them, they can go away. They can get genericized, which is what happened to Xerox — a once proud trademarked thing that now just serves as a synonym for “copy.” That’s not a danger here, since “candy” is already a real word, but there are still ways your own failure to enforce can result in your loss of trademark. Take it away, Forbes lawyer dude who makes much more money lawyerin’ than I do!
Trademark owners should diligently protect their trademarks from infringement and other misuse (e.g., blurring, tarnishment, unfair competition, passing off, false advertising and cybersquatting) that may harm the owner’s goodwill and business reputation. A trademark owner is not required to uncover all possible uses that might conflict, or immediately commence a lawsuit against every possible infringer. At the same time, a complete failure to enforce will lead to a weakening of an owner’s marks, loss of distinctiveness over time and, as we saw in this case, potential forfeiture of certain available remedies.
Legalese-to-English translation: if you don’t go after people vigorously for using your trademark, you might lose the failure to enforce your trademark, which gives you every incentive to overreach with your trademark and smack down any small company that even comes close to touching your precious candy-themed empire. You also have the resources to defend that trademark, while Joe Bob’s Game Dev Shop probably does not. Finally, you trademarked the word “candy” on clothing. CLOTHING!!!!! That’s the part we’re kinda incapable of getting past.
Now, we’ll throw Candy Crush a bone and say that we’ve never played Candy Slots Jewel Bizarro Extravaganza Spectacular Spectacular, or whatever the hell name of the game is that you’re going after, and that it might very well be a fuckton of infringement that seeks only to divert people from downloading Candy Crush and shovel them over to an inferior candy app. However, we will then take that bone right the fuck back because Candy Crush diverted people on our mobile app over to the Google Play store to buy Candy Crush, except we never sold you any mobile ads, so tables turned, hmmmmm?
We eagerly await the next corporate missive from King headquarters.