King: Our approach to IP
about.king.com
about.king.com
" We’re not trying to stop Stoic from using the word Saga but we had to oppose their application to preserve our own ability to protect our own games. Otherwise, it would be much easier for future copycats to argue that use of the word “Saga” when related to games, was fair play. "
Except, that is exactly what they're doing.
What's not clear to me is whether there is anything King could do to protect their IP without harming Banner Saga. For example, could they sue Banner Saga, but then settle out of court and allow them a special exception?
The question therefore arises as to what should be done with the 'Banner Saga' application. If King let it go, then this could serve as evidence that they are not concerned about the 'Saga' suffix. If they oppose, then they are seen to be attempting to take control of the 'Saga' suffix regardless of the game mechanic it is applied to.
The main problem is that the trade mark application would be unlikely to specifically identify the specific game mechanic that will be used. It is more likely to include reference to 'computer games' for example.
If King therefore let the application through, 'Banner Saga' could potentially be used with any game mechanic (and therefore serve as evidence that any game could use the 'Saga' suffix). King could have taken this approach and restricted Banner Saga's use via a coexistence agreement (mentioned below)(or by amending the classification), but negative PR aside, there is not much incentive for them to do this.
Further, although they could rely on the above strategy of showing confusion via a similar game mechanic AND the usage of 'Saga', this would be more difficult to prove if they permitted the registration. King are in a stronger position if they are able to say they are actively opposing applications, even if in certain cases this will result in negative PR.
On your last point, companies often enter into coexistence agreements, acknowledging that both parties can use an identical or similar marks (registered or unregistered) but under limited circumstances. This could be the case with Banner Saga for all I know...
Candy Crush, Pet Rescue, Bubble Witch, etc. all stand on their own. Saga doesn't add anything that makes any of them more specific.
It makes them all sound like they're part of the same series, which makes them sound more generic, if anything.
I believe the term you're looking for is trademark licensing.
So the trademark licensing contract would read something like:
1) Pay us $1
2) Plus legalese for "only valid as long as you don't disparage us in public" and "you are not to even joke about impersonating us" and "include a phrase similar to trademark used under license by King, somewhere in the ads/docs deep in the fine print."
3) Equals you get to use our "* saga" trademark, perhaps just this one game or just for a decade or whatever wiggly
(Note: The disney company has not sued every tee-shirt company they've ever hired to make a mouse tee shirt... this about the same kind of transaction, more or less)
I thought that was their point, however misguided they might be.
To my mind, their point amounts to 'we are bigger and richer, so we should get our own way'.
http://en.wikipedia.org/wiki/Candy_Crush_Saga http://en.wikipedia.org/wiki/The_Banner_Saga
Candy crush saga came out april 2012, while the banner saga's kickstarter campaign had already begun in march of 2012. People were already throwing money at them and investing in their application. Does that matter at all?
That doesn't prevent someone else from using the word "Saga." For example, "LEGO Star Wars: The Complete Saga" is sufficiently different that it's much less likely that someone would confuse it with one of King's games.
Of course a quick Google search suggests that King's "<something> Saga" mark is pretty weak to begin with, because there area lot of games that are called "<something> Saga", although mostly in the console market rather than the casual online gaming market. But it's still proper for King to file the objection, because trademarks are "use it or lose it." And in a market like casual gaming, the mark really matters because customers are unlikely to do a lot of research into who publishes a game before dropping the $3.00 or whatever they cost.
And remember, this is an objection not a lawsuit. An objection is just a statement saying "we think this mark will cause confusion with our mark," so the PTO can take it into consideration in deciding whether to award the mark.
I understand the legal argument, but from a policy perspective, it's sort of perverse. Any casual consumer taking more than two seconds to look at Banner Saga would realize that it's not from the same company as Candy Crush Saga.
That's really the bigger annoyance IMHO. I'm all for King getting a trademark on "Candy Crush Saga" and then examining each potentially similar mark for confusion, but they're effectively taking the stance that the use of any one of the words in their trademark would confuse consumers -- see, for example, their cease and desist to "All Candy Casino Slots", even though the use of the word "Candy" is more descriptive than anything else.
Er… no, unless you consider a desktop-based 12h tactical-rpg storytelling campaign to be in the same market as a match-three facebook-and-mobiles game.
How so? It fits the regex of numerous King games, something like /^.+\s+Saga$/
What I don't understand about the response is if they wanted to be jerks they'd sue Banner Saga guys and "Lego Star Wars: The complete SAGA" also. Or if they wanted to get massive internet karma basically for free they'd license the use of the "banner saga" name to the makers with an extra clause that its only $1 as long as its the last time they ever name something "* Saga". But no they march right down the middle taking neither side.
I don't think anyone involved would be very amused if I changed my HN name to "jaegerpicker saga" and started posting rants about how "I" love american IP law.
Of all the stinky things about IP law, this sort of reputation management / consumer protection system is the least stinky. Oh don't get me wrong, it is in fact stinky, just everything else in that general area is worse.
That's really surprising, considering "$whatever saga" has meant "the story of $whatever" ever since saga was first imported into english.
Honestly I wouldn't care if you posted under jaegerpicker saga, that doesn't affect the quality of my posts. Sure there are worse things about IP law but all of it's bad and I'm against any company that uses it as a weapon.
Its to prevent confusion. jaegerpicker, now is he the guy who likes American IP law or hates it? Imagine you getting sued because of something a copycat who stole your name wrote. What a drag for you.
I just don't see trademarks as all that bad. As a thought experiment, imagine a world without a trademark system, it would suck for everyone. Customers getting scammed, legit businessmen getting ripped off / shaken down, nobody knows who is the "real" company so lawsuits and the like all messed up, everyone gets to pay legal fees either directly or indirectly via higher prices, it would basically suck.
Or to "humanize" the process you could demand words in a dictionary can't be trademarked, which would lead to a world of cruddy brand names like "DBA VLM inc" or something like the ridiculous pharma names, at least until every phoneme combination is used up, which could be worked around by making every trademark a ridiculously long string of Klingon language.
I mean, it sometimes sucks, but is there anything that sucks less, and what would it look like? And thats where the crickets are heard. Well anecdote, special exception, unusual situation, anecdote, anecdote isn't going to do it if you want to apply it to the entire economic system. If you try to blue sky the whole idea and create a new trademark system that works as well as possible for as many as possible, it pretty much ends up as the current system plus or minus some "minor" details about punishment and paperwork and policies.
The totally garbage anti-capitalist copyright system and anti-capitalist patent system give the trademark system cooties by association, although trademarks aren't nearly as bad.
That last one though was ludicrous: "We’re not trying to stop Stoic from using the word Saga but we had to oppose their application to preserve our own ability to protect our own games."
In order to save the village, we had to destroy it.
I don't play that many games on my phone or tablets, so I don't have a dog in this fight directly, but now I guess I'll never make my app SagaNoteAngryFruit.
For example, a company could create a game that DOES use "Candy" and "Saga" in an infringing manner, and they could argue that since King didn't prosecute The Banner Saga, that they're no longer actively protecting their trademark, and thus it's no longer valid.
Now, I disagree with a bunch of things King has done in general, but this part specifically seems to be largely due to shitty trademark law. I could easily be wrong though, but I've seen this reason cited for a bunch of other cases, the Scrolls/Elder Scrolls case in specific.
The actions of King here are certainly fuel for the discussion, but clearly the self-serving justification is enough to leave a bad taste in the mouths of all but the most devoted adherents to their cause. On the other hand, they seem to say often enough that they are an ethical company and do not attempt to restrict the rights of others. The pessimist in me fears this is true.
So that means that you agree with the actions of King here.
Some parts of trademark convention are oddly specific, down to fonts, colors, capitalization, and parts of speech. For instance, you can't play with "Legos." They do not exist. You can only play with "LEGO bricks." The trademark is all caps and is an adjective, never a noun. You define narrowly, and enforce broadly, so that there is a clear no-man's land of similar marks around your brand.
Companies with competent lawyers will often spend thousands of dollars on trademark research reports before using a mark in commerce, and then spend tens of thousands every year on brand protection services. Back when I worked for a company that sold exactly those services, our research reports for "candy" and "saga" would have essentially summarized to "Register a different mark, dumbass," translated into tactful legalese.
Are any of those words trademarked wrt the title of a computer game? Isn't this analogous to trademarking words within song, film, or book titles?
King's "Saga" games do not appear to be a series so much as an attempt at a branding umbrella. That's much weaker than "Elder Scrolls", which is a series with common elements. Just "Scrolls" by itself is a long stretch, as the company did not produce other series with that word in it, like perhaps "Younger Scrolls" or "Forbidden Scrolls" or anything other than "Elder Scrolls", so confusion with "Magnetic Scrolls" was very unlikely.
Again, as software falls largely under copyright, I don't think King has a leg to stand on from legal tradition. But our courts don't necessarily do what we think they should, either.
"Otherwise, it would be much easier for future copycats to argue that use of the word “Saga” when related to games, was fair play."
Well it IS fair play.
If king wants a unique brand choosing a genric word used in many game titles in the last decades was a bad move.
King messed up all others developers must pay the price.
There are a gajillion match 3 games and they're all similar, but that doesn't make them all clones. Especially when they're as different as candy crush and bejeweled are.
Candy Crush includes special actions when you match 2 power ups. Bejeweled clears the board if you match two spinning cubes (the result of a match 5) but other than that matching two power ups doesn't do anything special.