All the King’s “Candy”?
King’s “Candy Crush Saga” has surpassed Farmville as the most popular game on Facebook. Check out these numbers: it is estimated that 1 out of every 23 Facebook user is a fan of the Candy Crush page; in addition, according to buzzfeed.com the game brings in about $633,000/day and rumors have surfaced that they are exploring an IPO. However, Candy Crush is making headlines for different reasons these days as the USPTO( United States Patent and Technology Office) has approved the publication of the word “Candy”. What does this mean? Well, when a company applies for a trademark with the USPTO they are granted publication only if the office declares that their mark, in this instance “Candy”, fits within the framework of a trademark– which is defined as a symbol, word, or words legally registered or established by use as representing a company or product. After which, the mark must stand for 30 days without opposition then the mark is given the status of a “registered” mark with the USPTO. Therefore, Candy Crush is still treading in unsafe waters.
Let’s start with the obvious question: How the hell can you trademark the word “Candy”?
The USPTO grants trademarks different protection levels based on four distinct categories/type of mark, which are as follows from weakest to strongest: descriptive, suggestive, arbitrary, and fanciful. Intuitively, “Candy” seems like a descriptive mark that should be afforded no protection because it is just too common and it “describes” how King’s version of the popular game Bejeweled is different from another version. However, there are certain cases where a mark like “Candy” could be trademarked as a descriptive mark. According to law, a mark that fits within the criteria of generic or descriptive can be trademarked only when the mark has acquired a “secondary meaning” with consumers, in other words people associate the descriptive terms with a certain product or company. Examples of generic/descriptive words that are trademarked through this secondary meaning clause. Red bottom Soles=Louboutin, Just Do It=Nike, and Chapstick=Lipbalm.
Secondary Meaning and the Family Feud Test!
Let’s assume we are given the amazing task of making questions for the popular game show family feud. On the game show two families go head to head by answering questions that have multiple answers. The host poses a question and normally there are about 5 potential answers for the question. The answers are ranked 1 through 5 and have assigned point values. The family with the most points at the end of the contest wins. I think that we should use the family feud test to see if a generic/descriptive term has reached “secondary meaning”. Let’s try it out! If I was the person making questions I could not make a question that said “name a company that people usually associate with the phrase “Just Do It”. There are not five answers to that question there is only one answer– Nike. Now let’s repeat the family feud test for the word “Candy”. The question could be something along the lines of “name a popular game with the word “Candy” in the title”. Now, I am not saying that Candy Crush would not be one of the top 5 answers but what about CandyLand or something else perhaps(can’t think of another one), which brings me to my next point.
Is the USPTO losing their marbles?
Although I do not believe King should be allowed to trademark “Candy”, I do not think it is as clear cut as some people are making it out to be. Some people believe that this is stupid and the USPTO has lost their minds allowing something like the word “Candy” to be trademarked. However, I believe that people are considering the complexity of this case nor King’s potential problem. If I create a game and put “Candy” in the title then people may mistake it for a subsidiary of King’s Candy Crush or they may not who knows. The point is that the potential loss exists and trademark protection is a way for King to ensure that they keep their user base and app developers aren’t using Candy Crush mania for their own benefit.
Establishing Secondary Meaning and Fair Use
I would like to end my piece on two hypothetical scenarios. Suppose King was allowed to conduct a Facebook poll asking users what they think of when they see/hear the word “candy”. Currently, there are over 46 million Facebook users playing Candy Crush monthly. So, my question is would it be so far fetched to believe that King could acquire data to support that over 10 million Facebook users associate the word candy with Candy Crush? And if that were to happen would that be enough to establish secondary meaning? Perhaps, but I am just not buying it, but the USPTO might have to. The rise of social media will shift the way we think about trademarks and with that shift it will be harder for people to argue against generic/descriptive terms acquiring secondary meaning. It will even be harder for the USPTO to decipher between legitimate marks that have acquired secondary meaning versus marks that are being used as a way to gain a competitive advantage in the marketplace.
The second scenario is that I, game app developer A, want to create a game that is a variation of the popular game “Rock, Paper, Scissors”. However, instead of using the traditional “Rock, Paper, and Scissors” I want to use candy. So Twizzlers have a competitive advantage over Laffy Taffys but Laffy Taffys destroy Skittles( you get the picture). I want to call my epic game “Candy Shoot”. Would I be infringing on King’s “candy” trademark or would that fall within fair use. Fair use means that person A could have the word “candy” trademarked by way of the secondary meaning but Person B can still use the word “candy” by way of it’s primary meaning– sugary goodness. If you think I should be allowed to use the word “candy” in my game title then should we allow King to trademark “Candy” or is my ability to use the primary meaning of “Candy” in a game title defeat the purpose of trademarking the word in the first place?
Do you think King should be allowed to trademark the word “Candy”?