What’s in a common dictionary name: King’s tenuous “Candy” trademark

If you or I wanted to trademark a common dictionary word—let’s say “snow”—we’d have a tough time making a case that we deserved exclusive rights to use that word. When a major corporation like Candy Crush Saga maker King tries to trademark a common dictionary word—like “candy,” for instance—it has a slightly better chance of claiming limited rights over that small part of the English language. But it’s far from an open-and-shut case.

This legal issue has come into the news this week as King attempts to shut down competing games that it says use the term “candy” in their titles in “damaging” and “confusing” ways. As Gamezebo first reported, the company recently sent such a notice of infringement to Danny Hsu, the maker of iOS game All Candy Casino Slots – Jewel Craze Connect: Big Blast Mania Land.

In a statement from a King spokesperson, the company said its position is based on a trademark granted for “candy” in the European Union (the company is based in London). As far as United States law is concerned, though, King may be jumping the gun. True, the US Patent and Trademark Office published King’s “candy” trademark last week, after a February 2013 filing. That’s still one step removed from having the trademark registered with the USPTO, though. Before the trademark is granted, King will first have to get through a 30-day period where anyone can file an official opposition to the filing (as explained in detail here).

“Realistically, I would assume a small army of people will oppose [this trademark filing],” Mark Methenitis, chair of the Video Game Committee at the American Bar Association and the editor-in-chief of the Law of the Game blog, told Ars. “I have to assume there will be a lot of opposition, as there are dozens of ‘candy’ games that predate Candy Crush.”

Indeed, a cursory search turns up roughly a thousand prior games that use the term “candy” in their title, as you’d expect for such a common word. That list includes PC shoot-em-up Bullet Candy, children’s Game Boy Color title Tiny Toon Adventures: Dizzy’s Candy Quest, and Candyz (a match-three puzzle game that bears more than a slight resemblance to Candy Crush). And that doesn’t even get into board games like Candyland or gaming websites like Candystand.com. All of these works and properties would seem to have just as much claim on a word like “candy” in a video game context, if not more.

King, for its part, said in a statement that “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.”

In the particular case of Hsu’s app, King notes that “its icon in the App store just says ‘Candy Slots,’ focusing heavily on our trademark. As well as infringing our and other developer’s IP, use of keywords like this as an App name is also a clear breach of Apple’s terms of use. We believe this App name was a calculated attempt to use other companies’ IP to enhance its own games, through means such as search rankings.”

Common word or protected term?

The idea of protecting a word as common as “candy” isn’t as ridiculous as it might seem. Companies like Apple, Adobe, Lotus, Sun, Sprint, Beefeater, Comet, Nickelodeon, Jaguar, and even King itself all show that it’s not that hard to trademark an “arbitrary” dictionary word that has nothing to do with your core business.

Those trademarks are all generally confined to their specific industries, though. King is seeking to have its claim over of the term “candy” applied to a dizzying array of over 100 fields, ranging from DVD players to baby monitors, exposed photographic film, educational services, amusement parks, gambling facilities, and practically every article of clothing you could name.

“It’s a little silly to think that King’s big—yet brief—success could really grant this kind of protection,” Methenitis argues, noting that King’s filing has already been thrown out and reconsidered once before getting to this point. He also notes that while Zynga was able to get a trademark for its unique “-ville” suffix, the company probably couldn’t have claimed a trademark on the word “farm” (luckily for King, which publishes a game called Farm Heroes Saga). King has also filed an application for a trademark on the word “Saga,” but that effort has been suspended by the USPTO as of December.