Candy Crush Saga, the brightly-coloured and highly addictive social game, followed the lead of other popular games, such as Angry Birds, to become an online phenomenon of its own. As one of the most popular online games and phone apps, it is no wonder that its developer, King.com Limited, has recognised the value of protecting its brand (they’re not alone – see our previous post here about Zynga’s protection of its registered trade mark “WITH FRIENDS”). Following a trade mark application almost a year ago, King has had its US trade mark application for the word ‘CANDY’ accepted in relation to video games, educational services and clothing items. [Note: King has also applied for a US trade mark registration for ‘SAGA’ and has opposed another developer’s trade mark application for the phrase ‘Banner Saga’].
The developer has wasted no time, with Apple reportedly seeking removal of “candy” branded games from Apple’s App Store within a week of the grant of the trade mark. There is, however, a 30-day period within with competitors can oppose the grant of the trade mark.
Many are arguing that the grant of the trade mark imbues King with a broad monopoly over a generic word ‘candy’. However, the developer claims that it will not enforce its rights against legitimate uses of the word ‘candy’, such as those games which are of no similarity to Candy Crush Saga. Its interest is in protecting its brand against those wishing to trade off it. This is unsurprising given that the Candy Crush Saga game reportedly earns King.com a daily revenue of almost $1 million. King.com’s CEO Riccardo Zacconi has written an open letter about the company’s Intellectual Property strategy here.
What about Australia?
King’s interest in protecting the CANDY mark of course goes beyond the US. For example, it has already registered CANDY as a Community Trade Mark, and has also sought to register the mark in Australia. The Australian application is under examination.
However, even without a registration in Australia, King may have additional remedies against copycat games by way of the common law action in passing off. This might apply where the game is a copy of Candy Crush Saga or is otherwise attempting to trade by confusion on the goodwill or reputation of Candy Crush Saga. King would have to establish that there is a misrepresentation as to the source of the goods or services or a misrepresentation as to a connection between the two games. This is perhaps brought most sharply into focus when CANDY is used within icons in The App Store, without additional distinguishing material that might otherwise be factored into these separate causes of action.
It will be interesting to see which games will make it to the next level and which will be forced to be taken down.
Mandy Milner is a law student at Monash University who will be undertaking a Seasonal Clerkship at King & Wood Mallesons in June 2014. A passionate IP enthusiast, Mandy recently completed her Honours Thesis on the tension between the right to privacy, copyright and freedom of expression in relation to photographs in the world of Facebook! Mandy previously wrote a guest post for us about IP in the age of the hashtag here.
