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A B C D E F G H I J K L M N O P R S T V W Y

Game makers aim to crush ‘candy’ in trade mark saga

Game makers aim to crush ‘candy’ in trade mark saga

Thursday 13th March 2014

If you would like more information on top level domain names or how we can help you with any requirements you may have please do not hesitate to contact either: Hayley Hall on 0151 600 3466 or by email hayley.hall@brabners.com, or Colin Bell on 0151 600 3281 or by email colin.bell@brabners.com.

You can follow the Brabners Commercial/IP Team on Twitter: @BrabnersIPCom

King.com, the creators of Candy Crush Saga, are seeking to enforce a European Community trade mark for the word ‘Candy’ sparking anger amongst game developers who have launched their own protest.

Many are familiar with the famously addictive game Candy Crush Saga. The game’s developers, King.com, understandably keen to protect their rights in their hugely popular creation, have filed for a number of trade marks in a number of countries. They have recently additionally acquired the word mark ‘Candy’ (on its own) in Europe.

The ‘Candy’ trade mark was registered in Europe in June 2013 and has caused uproar amongst game developers who feel that it is ‘unethical’ on the part of King.com to seek to enforce this registration against them. It seems the developers found it ironic that King.com should seek to prevent third parties using similar names when in their opinion Candy Crush Saga itself is very similar in style to pre-existing games. In protest, a number of independent developers have set up a website called Candy Jam on which they encourage other game makers to create and upload games incorporating the word ‘candy’ in their titles. Games uploaded to the site include ‘Candy Crush Aga’, ‘CandyPods’ and ‘Candy Candy Candy’.

Under trade mark law it is possible to register words that are distinctive in the language in which they are used. As the examiner deemed the word ‘Candy’ to be distinctive in relation to the goods and services it covered, the trade mark was allowed to proceed. It then will have entered a three month opposition period.  During the opposition period no oppositions were submitted. Accordingly the European Community Trade Mark Office registered the mark. Arguably any third party could have (and could still) object to the mark on the basis that it is descriptive but King.com will argue it has now acquired distinctiveness.

The ‘Candy Jam’ project and website were set up after certain developers, who had used the mark ‘Candy’, had been contacted by representatives of King.com over infringement of their trade mark rights. This angered developers sparking a huge increase in the production of candy-named games by way of protest.  The likely logic behind this is that it is doubtful that King.com has the resources to bring proceedings against all infringers. That said, if they do not enforce their trade mark against these infringers they are at risk of losing their rights through acquiescence.

Additionally, by merely encouraging the creation of numerous games with names including the term ‘Candy’ the creators of the ‘Candy Jam’ site could, whether knowingly or not, be putting King.com’s trade mark at real risk.

By flooding the market with similarly-named games the word ‘Candy’ could become generic in games or apps thus diluting the mark. Owners of marks that have become generic, and therefore no longer distinctive, may have their rights revoked in which case the mark is on the open market for all to use; although in this case King.com would argue that the actions are not sufficient to make their mark generic as they have been taken in bad faith.

In short, unless King.com enforces their legitimate trade mark rights to ‘Candy’ against infringers they risk losing their rights through acquiescence, and the more ‘Candy’ games that are created the more likely the mark is to become generic.

If you would like more information on top level domain names or how we can help you with any requirements you may have please do not hesitate to contact either: Hayley Hall on 0151 600 3466 or by email hayley.hall@brabners.com, or Colin Bell on 0151 600 3281 or by email colin.bell@brabners.com.

You can follow the Brabners Commercial/IP Team on Twitter: @BrabnersIPCom