King Digital Entertainment had a pretty sweet deal on its hands. Its game “Candy Crush” was crushing the competition and cramming its coffers with cash. But then some would say that the company got a bit greedy. It filed a trademark application for the term “Candy” that drew the attention of many who thought that King was being overly aggressive in protecting its intellectual property. Later, though, in light of public sentiment -- and its initial public offering – King surrendered its claim.
Holly Lance, fourth year associate at Buchanan, Ingersoll & Rooney PC, notes that this move comes as a result of “pushback from others who had mobile application games. King thought it was the best route to take based on its IPO, so it abandoned the ‘candy’ application.”
While some may have thought King’s pursuit of a trademark on the word “Candy” was too aggressive, she points out that there is a difference between an arbitrary mark and a generic mark. Companies have taken words that are common in the English language and registered them as trademarks in disparate fields. Think Apple, Tide or Camel as they relate to computers, detergent and cigarettes. This is fairly common, but a company could not register, say, the term “book” to refer to books. “The idea that King would try to get a trademark for ‘Candy’ is not that bizarre. The problem is, the term is dilute and they cannot claim exclusivity,” Lance explains, noting that there are 140 live or pending applications for downloadable content using the term “candy,” and 46 of these are games.
Speaking on other trademark matters, Lance noted that the recent “Dumb Starbucks” store claimed it was not infringing on copyright because it was making a point through parody. Lance notes that “you can use someone else’s trademarks if you are trying to make a satirical, political statement,” but, she says, this was a weak defense in the case of Dumb Starbucks, which had very little in the way of actual commentary.
Another recent trademark case that has caught the public attention was that of Google seeking to register the term “Glass.” In this case, Google Inc. was rejected because there were prior registrations for similar terms. Lance noted that, with Google’s deep pockets, the company might be able to overcome these hurdles, as it is already involved in cancellation proceedings with one of the prior registrants.
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