Last month, it came to light that King, the makers behind the wildly popular Candy Crush Saga mobile game, had filed trademark applications on the words “candy” and “saga.” Not only are they trying to trademark common as dirt words, they were trying to enforce their trademarks by going after other games, including the not at all similar The Banner Saga game by Stoic Studio.

At the end of January, King CEO Riccardo Zacconi issued an open letter saying that King wasn’t intent on eliminating any and all competition using their trademarks. Instead, King said that their trademark policy “is to protect our IP and to also respect the IP of others.”

Unfortunately, that isn’t how it’s actually working in real life. King is using loopholes in trademark law as part of a legal battle with CandySwipe, a game that preceded Candy Crush Saga by two years, and outspend developer Albert Ransom out of the mobile app business.

To fully understand what’s happened, you have to go back to 2012 when Candy Crush Saga was released. The banner image above is a comparison of assets of CandySwipe and those of Candy Crush Saga. The colour scheme, the match three through swiping gameplay and even the word “sweet” are very similar. So CandySwipe developer Albert Ransom tried protecting his CandySwipe trademark by challenging Candy Crush Saga’s trademark by claiming “likelihood of confusion.” While we often see trademark challenges on such grounds, the coincidences here are enough that one wouldn’t immediately write this off as trademark trolling.

Things carried on quietly for a while in this trademark dispute until the last few weeks. Even when King released an open letter claiming not to be a bad guy by trademarking “candy” and “saga,” it seems as though they were looking into legal loopholes for their battle with CandySwipe.

First, let’s look at the interesting (and now, ironic) part of that letter.

“At its simplest, our policy is to protect our IP and to also respect the IP of others.

“We believe in a thriving game development community, and believe that good game developers – both small and large – have every right to protect the hard work they do and the games they create.

“Like any responsible company, we take appropriate steps to protect our IP, including our look-and-feel and trademarks. Our goals are simple: 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.”

So you would think that King would understand that Runsome Apps, the company headed by CandySwipe dev Albert Ransom, is just doing what they would do? Maybe they talk this one out, settle out of court and just go on their merry way.

Except that King pulled a special trick out of their legal playbook. They bought the trademark to a previously unknown game called Candy Crusher that was released in 2004. While Candy Crusher bears no resemblance to either CandySwipe or Candy Crush Saga, it does have a trademark involving the word “candy” that predates CandySwipe by six years. So King used this to counter challenge CandySwipe’s trademark.

At this point, Ransom had lost his battle. His entire challenge of King’s candy trademarks was based on having a candy trademark before King. Now, King used a legal loophole of buying a trademark that pre-dated Ransom’s and enforcing said trademark to crush CandySwipe. It’s a case of the hunter becoming the hunted. Except the original hunter was just interested in self-defense rather than being the clear dominant apex predator of the mobile gaming jungle.

So while King is legally allowed to protect their trademark, buying an old trademark to protect a new trademark by crushing someone else’s trademark goes against what Zacconi said in that open letter. It goes against the spirit of saying that everyone has a right to defend their intellectual property if you buy a third party’s intellectual property to defend your intellectual property from a seemingly legitimate claim against it.

I’ve mentioned a few times that I think that intellectual property laws are outdated and just don’t adequately reflect the current state of hardware and software technologies. It’s not just a gaming problem but a problem for any technological sector that’s undergone a big growth boom in the last decade or more.

King exploiting the current state of  trademark law to outspend and out maneuver a small company might be legal but it doesn’t seem morally and ethically sound to the layperson either. So GGWP King. You won this battle, but I don’t think you earned it.

Sources: King, CandySwipe, Gamezebo