CandySwipe Open Letter to King regarding trademark | Hacker News Reader

CandySwipe Open Letter to King regarding trademark

candyswipe.com

303 pointsmkenyon65 comments

It would be interesting if Apple would step in here. They could, given their obscenely vague appstore "rules", simply delete the CandyCrush Saga game out of the store as it is a copy of an existing game. That would force King to be a bit more creative in their copying in the future.

That said, "protecting" games has been a problem, almost literally forever. On the one hand you want folks to benefit from there work, on the other hand sometimes a 'derivative' is a much much better game. So do you cut off that like we've done with software patents? Or not?

I'm the author of a popular app that has been copied by many many other developers. Despite many complaints to try and limit the copy-cats, Apple does nothing and leaves the issue up to the developers to sort out between themselves for the most part and it's absolutely frustrating.

Watching an app be successful and then watching the copy-cats swoop in to feed on your success as Apple (or Google) do nothing is very difficult to deal with.

Welcome to capitalism. If you were a web app, or a brick and mortar store, there would be no Apple or Google for you to appeal to. Only the courts, which you have anyway, but which have no sway over developers in China, etc.

Honestly I can't believe you (and other) developers are surprised when this happens.

My company's web site was copy and pasted wholesale by a competitor, and we had to threaten legal action against them in order to get them to replace it. (Probably with someone else's.)

The claim for the Apple marketplace was that it would be a better place, a well-tended garden. Better for consumers, better for vendors, and worth Apple taking a large slice of profits. So I think it's reasonable that developers are surprised.

Exactly. What is the point of the walled garden if it protects neither producers nor consumers?

How are the consumers in any way affected by this?

Less choice when all the independents die out, inferior products because unoriginality isn't punished, confusion over product differentiation leading to undesired purchases ... the consumer is getting screwed right, left, and center.

The issue with courts is that not only do you need to convince them that the copier is in the wrong, but also that apple/Google should be the ones to do something about it.

> Watching an app be successful and then watching the copy-cats swoop in

Be careful though. That successful app could very well likely be a copy-cat itself. Success does not mean originality.

> "protecting" games has been a problem, almost literally forever. On the one hand you want folks to benefit from there work, on the other hand sometimes a 'derivative' is a much much better game

Despite this argument's merit in general, it's a complete digression in this particular case. They didn't just heavily copy his game, but then turned around and named it similarly, registered a trademark, then turned that trademark against him. At what point do we stop pretending these people are anything but thieves?

Ouch. I had no idea CandySwipe even existed. This doesn't look good for King.com at all, especially after they were accused of copying Scamperghost[0].

[0]: http://junkyardsam.com/kingcopied/

Honestly, Candy Crush and CandySwipe, while both using the candy theme, are rather different in terms of gameplay. Unlike the Scamperghost case, it is certainly not the case that Candy Crush is a copy of CandySwipe or even derivative. Candy Crush is the better game at least in terms of polish and long-term playability.

I won't deny King's douchiness in the trademark case, which will no doubt hurt Mr. Ransom and Runsome Games, but this is not like the Scamperghost case (and nowhere does Mr. Ransom imply that it is -- he's just calling out King on its evil scheme of attempting to quash a pre-existing trademark).

True, but gameplay was never really the issue in terms of trademarking "Candy" (and "Saga" or whatever else). The interesting thing is that, in order to defend a trademark, you have to prove that there is potential for confusion. Here we have someone who supposedly had a confusingly-similar trademark before Candy Crush showing actual user confusion (i.e. no need to argue potential if you can show it's already happening).

The douchiness of King's move is not in question. I'm just pointing out that, apart from generally being similarly evil, it's not at all related to the Scamperghost thing. We should be angry at King for two different ways in which they are evil, not two counts of the same thing. If anything, this makes them worse.

King apparently bought an earlier (than CandySwipe) trademark they are now using against CandySwipe. They may well get away with it, especially since CandySwipe can't defend itself.

That's pretty dirty. If you have no legitimate claim to a trademark, just buy an existing slightly related trademark and use that!

I am surprised that this would pass in court as being a legitimate means of existing.

It doesn't have to pass in court as long as you have more money than your opponent. You just keep going until they run out of money.

Yes. Long ago I asked my first business lawyer something like, "Could we be sued for that?" His answer was something like: "Sure. You can be sued for almost anything. They probably can't win in the long run, but that isn't the important question. It's whether you are willing to pay to fight it to the end."

It seems to me that the anti-SLAPP laws apply in spirit here (of restricting overbearing litigation.)

http://en.wikipedia.org/wiki/Strategic_lawsuit_against_publi...

It might be, but sadly and more realistically, the costs of a completely fair and honest dispute would still be incredibly inhibiting.

It seems to me that making games for the iTunes App Store has become a "red ocean strategy." It's fiercely competitive, and there are now some monster sharks (e.g. King, Zynga). I don't like the sharks, but hey, they're sharks: they're doing what sharks do.

Time to look for some blue ocean, I guess.

It's very risky for your business to depend entirely on the closed platform of another business. It really shouldn't be surprising that 'sharks' are ripping off smaller developers in these marketplaces. They've proven to be better adapted to the rules of the game.

Sharks are doing what sharks do: they don't have a choice. People acting like sharks? They can choose other paths.

I get that they're responding to the incentives. Which is also fucked up. But I can hate the player and the game.

You imply the web is the blue ocean? :)

I've experienced countless hotlinkings, rippings, clones, insults, DoS attacks and cybersquattings as a former Flash game developer. Luckily, I have not been involved in any trademark issues, but it is happening also on the web, isn't it?

I didn't imply anything about the web.

I was just referencing the ideas in this book (with which I have no affiliation): http://en.wikipedia.org/wiki/Blue_Ocean_Strategy

>"You are able to do this because only within the last month you purchased the rights to a game named Candy Crusher (which is nothing like CandySwipe or even Candy Crush Saga)."

How does this work? Can one buy a trademark in order to pre-empt someone else's trademark which pre-empts another of your own?

I guess that buying the intellectual property rights to the game, they can say to the trademark office - look here, proof or presence in the gaming market under this name since 200X, therefore we should have the the trademark and the exclusive right to name things candy.

Seriously, why isn't this guy able to win this and gain monetary damages?

I'm guessing the cost of actually doing this is more than he has. And even if he wins, I'm sure King.com will spend months or years trying to appeal the ruling which will cost him more money.

Well if the case is strong enough, the US at least you don't need money, you tell the lawyers they can keep the the money all you want is to establish your right to the trademark.

Then they go off and bring this guy down, make their money, and you get the satisfaction of knowing that your trademark is safe.

...unless the law is clear, and he's destined to lose. Then no lawyer will touch it on the terms you describe.

...is this the kind of battle the EFF fights?

Hey dude,

That sucks.

As a favor, I went ahead and gave them a shit review.

If I had more time, I might link farm their brand name all over the place.

Just deleted Candy Crush myself and low reviewed them. This is ridiculous.

This is pretty much the only thing we can do, give Candy crush a bad review, candy swipe a good review, and tell all our friends.

King is no different than Zynga.

The best formula for making it in the appstore is to copy other peoples work. This has been apparent for quite some time now.

This sort of thing is happening increasingly frequently. I really like the idea of AskPatents ( http://patents.stackexchange.com ).

It seems to me that as developers we need a similar site where people can start objecting to overly broad trademarks, especially single word ones which are targeted at web service and application name related trademark classes.

There are probably much fewer trademarks issued that patents, and they are easily searchable online, eg the UK Trademark Journal is at http://www.ipo.gov.uk/t-tmj/tm-journals/2014-006/index.html .

A trademark is also much easier to object to than a patent ( http://www.ipo.gov.uk/types/tm/t-other/t-object/t-afterpub/t... ).

It would be a great weekend project for someone to create a web app which does some of this. You could even charge businesses a fee to monitor words that may affect their businesses.

There is a constant struggle between doing what's right for your business and doing the right thing. Until you are placed in that position, you really have no idea what you'll do.

I hope this post brings about enough social pressure to ensure that the right thing, whatever that means, happens.

You have no idea what you'll do but among the social pressure the right decsions should have been pretty obvious by now. F-- candy krus h

Somewhat related and something I've thought about over the years:

"Here's a model that we've had trouble with. Maybe you'll be able to figure it out better. Many markets get down to two or three big competitors—or five or six. And in some of those markets, nobody makes any money to speak of. But in others, everybody does very well.

Over the years, we've tried to figure out why the competition in some markets gets sort of rational from the investor's point of view so that the shareholders do well, and in other markets, there's destructive competition that destroys shareholder wealth.

If it's a pure commodity like airline seats, you can understand why no one makes any money. As we sit here, just think of what airlines have given to the world—safe travel, greater experience, time with your loved ones, you name it. Yet, the net amount of money that's been made by the shareholders of airlines since Kitty Hawk, is now a negative figure—a substantial negative figure. Competition was so intense that, once it was unleashed by deregulation, it ravaged shareholder wealth in the airline business.

Yet, in other fields—like cereals, for example—almost all the big boys make out. If you're some kind of a medium grade cereal maker, you might make 15% on your capital. And if you're really good, you might make 40%. But why are cereals so profitable—despite the fact that it looks to me like they're competing like crazy with promotions, coupons and everything else? I don't fully understand it.

Obviously, there's a brand identity factor in cereals that doesn't exist in airlines. That must be the main factor that accounts for it.

And maybe the cereal makers by and large have learned to be less crazy about fighting for market share—because if you get even one person who's hell-bent on gaining market share.... For example, if I were Kellogg and I decided that I had to have 60% of the market, I think I could take most of the profit out of cereals. I'd ruin Kellogg in the process. But I think I could do it.

In some businesses, the participants behave like a demented Kellogg. In other businesses, they don't. Unfortunately, I do not have a perfect model for predicting how that's going to happen.

For example, if you look around at bottler markets, you'll find many markets where bottlers of Pepsi and Coke both make a lot of money and many others where they destroy most of the profitability of the two franchises. That must get down to the peculiarities of individual adjustment to market capitalism. I think you'd have to know the people involved to fully understand what was happening."

-Charlie Munger http://ycombinator.com/munger.html

Damn that's an intimidating wall of text in that link.

What does this comment add to the conversation?

The most obvious difference between the mentioned markets is consumables versus one-time-ever purchases.

With consumables (which includes things like cereal), you decide which brand to purchase, and you use or consume it. Then, the next time you need it, you must decide again which to buy and have virtually no downside to purchasing a different brand (no lock-in from the previous purchase).

With one-time-ever purchases (which I think includes subscriptions or recurring purchases where there is a barrier to switching, including games where you have saved progress through levels and rack up points or a high-score), you decide once and then stick with it. I think that's where competition can easily pivot from healthy for a business to merciless.

Then there are things like airline seats which are technically commodities, but not entirely. With airline seats, there are barriers to information (such as being able to use e.g. Kayak to compare prices, but having Spirit excluded from Kayak within the US means you must know to also check Spirit's site), and there are MVP and rewards programs and airline miles, etc, and there is also quality and ammenities, and the fact that you never know how much a ticket with luggage and a snack is going to cost until you go through the entire checkout process (and who has time to do that for all options). So, airline seats seem like they should be commodities, but they really aren't.

Your comment on brand is probably close to the truth

thinking this way: in the mind of the consumer tasty-ohs are not cheerios, though they are a replacement, but a seat on Southwest is the same thing as a seat on Delta. some people care, most don't. Airlines have not been able to successfully differentiate their products, so they operate in a commodity market, same as petrol or supermarkets.

Hmm, that is interesting insight. I wonder if he isn't drawing the wrong conclusions about the cause of these market inconsistencies? It may not be the airlines or soft drink distributors that make markets more profitable or less profitable for suppliers- it may be the consumers. Perhaps consumers in some soft drink markets are more price sensitive than others? Perhaps airline customers are more price sensitive than cereal customers? For example- Cereal customers want to eat what they like, it it doesn't matter if it costs them $0.50 more for the brand they know well. Whereas an airline customer may or may not fly very often, and they really don't know who is better, or they don't care, they just want to get to their destination while spending as little as possible- makes it hard to differentiate your product.

Soft drink distributors are an interesting case- they sell the same thing, with the same brand, in different markets- apparently some are profitable and others aren't. I would guess it has to do with price sensitivity of the customers in a given market- some markets may not prefer one beverage over another as strongly as other markets, whereas they may be much more price sensitive.

There's a pretty good coursera course talking about this topic at the moment: https://class.coursera.org/strategy101-003

If an airline seat could be sold profitably for 3 bucks, most consumers bought one or two seats a week, then the airlines could get away with probably charging 4 bucks for the same seat -- no one would blink an eye.

But when a seat costs $300, and people only purchase maybe once a year (or several years), then the airlines are less likely able to get away with charging $400.

In other words, two of the factors in this equation are how often the item is purchased, and how expensive it is (compared to the benefits).

That was a wonderful read, thank you for sharing.

It is a travesty that trademark trolls are enriching themselves based on the hard work and creativity of others. I hope that Runsom Apps prevails.

The day King goes down the drain many will dance upon its grave, and other indie devs will take turns to pee on it.

May swift karmic justice fall upon them soon.

A corporate legal team stealing intellectual property and trademarks from smaller entities is more american than apple pie and baseball.

so, is that all these big game companies do, just copy?

Seems that King and Zynga have been called out a few times recently.

So are they hoping that they can clone a game just enough and hope people buy it because of their name versus some indie dev you may not have heard of?

That's pretty much the business model. Copy ideas and execute faster than the original developers because they have more resources.

> so, is that all these big game companies do, just copy?

Well, don't just limit it to big companies. Small companies, even startups just copy away. And it's not just games, but apps in general.

I dont think I see it as often in other apps. Look at the hype around Flappy Bird clones right now.

Wow they are not kidding about the ripoff...

Even the "wildcard" game piece is almost identical.

Was this posted to Reddit yet?

Here --> http://www.reddit.com/r/gaming/comments/1xq1k6/candyswipe_op...

Thanks

Somebody ought to make a law that would protect people against things like that. /s

Perhaps a legal defense could be funded through something like KickStarter?

Damn copyright trolls. It's a shame this can't be more known.

It's spreading quickly in the gamedev/writer community on Twitter.

This is so sad and unfair

Reply on news.ycombinator.com