The Maker of Candy Crush Saga Is Trying To Crush Your Ability To Use The Word Candy: A Trademark Misadventure

Can you trademark a single everyday word? Even if you know nothing about trademarks, the answer seems obvious: NO. After all, if you can trademark a single word, what’s to stop you from trademarking “foot” or “bike” or “candy” and then suing someone every time they used that word in a business setting? Such a reality would be absurd. Sadly, such a reality may be upon us because King, the maker of the hit game Candy Crush Saga, has just received approval from the United States Patent and Trademark Office (USPTO) to do just that.

King is trying to protect Candy Crush Saga, its big moneymaker, from a host of imitators who use the word “candy” in their titles. So it did what any reasonably copyright holder would do to protect its financial interest… it submitted an application to trademark the word “candy” in order to prevent other game developers from using it. I’m not being sarcastic here either; King’s response IS reasonable because these imitators have confused the general public into thinking that these other Candy games were just like Candy Crush Saga, maybe even made by King. And with the public assuming all these games came from the same manufacturer, they became less likely to download the real deal and more likely to download the imitation, siphoning profit from King. This kind of marketplace confusion is exactly the type of problem that trademarks were designed to prevent.

The problem here isn’t that King tried to trademark a single word. The problem is that the USPTO let it. This is troubling for two reasons. First, the USPTO approving such an application violates a basic tenet of trademark law: that a trademark must stand out, it must be distinct. According to the USPTO’s own guidelines:

Generic words... are never registrable or enforceable against third parties. Because generic words are the common, everyday name for goods and services and everyone has the right to use such terms to refer to their goods and services, they are not protectable. 

In this case, the word “candy” is too generic; it doesn’t immediately reference a game for most people. It refers instead to a sweet food substance that a man my age shouldn't enjoy as much as I do. If, on the other hand, King had tried to trademark a unique version of the word like “Kan-D” the mark might have been stronger and more worthy of protection.

The second reason King’s application is so troubling is that it’s bad policy. If anyone can trademark any word, they can then clog up the federal court system (where trademark disputes must be litigated) with needless lawsuit after needless lawsuit. King clearly has no intention of legally pursuing every business that uses the word “candy". They simply want to prevent other game developers from making games that reference Candy Crush Saga. But you can’t base policy on the intention of one party. You have to base policy on the potential actions of everyone affected. Frankly, other trademark owners may not be as nice as King when it comes to protecting their trademarks.

Luckily, the trademark process is a long and complication one. Here, the USPTO has not officially registered the mark (which is the final step that grants the trademark owner a wide swath of protective powers). They merely approved King’s application, which means now that anyone who could be hurt by the mark has 30 days to contest the mark and try to persuade the USPTO why trademarking a single generic word is a bad idea. And believe me, there will be a lot of pushback on this, from immediately affected parties and policy wonks.

So what possessed the USPTO to approve King’s application in the first place? Was it negligence? Does it signal a strange new shift in policy? Is it a long-term gambit designed to draw attention to single-word trademark applicants and whip the public into a frenzy, thereby dissuading future like-minded applicants? Who can say? In my estimation, King’s registration will probably fail because of the pushback its application is going to get. But if the mark survives the contest period and officially registers, you can bet this won’t be the end of the story. King may well have just saved Candy Crush Saga from imitators, but it also just painted a huge target on its back.

Ellen Page And The Strange Case Of The Misappropriated Likeness

It’s been a weird couple of months for Ellen Page, the elfin actress behind Juno. A few months ago, her likeness was stolen for the hit video game The Last of Us. Now, a video game that she actually participated in and lent her likeness to, Beyond: Two Souls, has featured her in a digital nude shower scene, pictures of which leaked without her consent, and which show the whole shebang.

Let's talk about The Last of Us first. Back in June, the video game made a splash, and not just because it was a critical hit. One of the game's main characters, Ellie, looked suspiciously like Page, so much so that people were asking Page if she acted in the game (she didn't). In fact, early concept art of Ellie art didn't just resemble Page, it was clearly her face.  Behold!

The one on the left is the concept art of Ellie and the middle is the version of Ellie that appears in the game, altered to look less like Page. If you're not convinced by these side-by-sides, just google "last of us ellen page" and you'll see comparison after comparison. What's striking is how even after the developer, Naughty Dog, changed Ellie's appearance, she pretty much still looks just like Page.

Anyway, Page caught wind of this and instead of suing the pants off Naughty Dog, she said this:

I guess I should be flattered that they ripped off my likeness, but I am actually acting in a video game called Beyond: Two Souls, so it was not appreciated.

Naughty Dog is pretty lucky Page isn't lawsuit-happy because she has a solid case for Appropriation of Likeness, a tort that prohibits the use of someone's name or likeness for commercial purposes without their consent (in California, name and likeness are actually protected by statute - California Civil Code Section 3344(a)). If she decided to sue, she could put Naughty Dog out of business.

So now we arrive at Beyond: Two Souls, the game that Page actually participated in by doing the voice and motion capture (see pic above) for her character. At one point, the game features a scene with digital version of Page's character taking a shower, all of her lady parts tastefully obscured. Unfortunately,  pictures from a developers-only version of the game leaked out, showing those lady parts in their entirety (Page, of course, did not pose nude for this scene. She filmed her role wearing a mo-cap suit - a leotard fitted with digital nodes that capture her movement).

Who's to blame? The game's developer, Quantic Dream, seems like the obvious target since it made the nude model to begin with; without the model, this controversy would never have arisen (in the law, we call this "direct causation"). But Quantic Dream claims that it made it impossible to view the model's lady parts within the course of normal gameplay. Their story is that an unauthorized developer took the model and filled in the blanks, as it were. So is Quantic Dream off the hook because someone found a way to view that model in an unintended way? And even if Quantic Dream was the right party, could Page sue the company for Appropriation of Likeness? She did permit the use of her face, after all, but does her "likeness" extend to her other features? Consider also that since Page didn't actually pose nude, all the "blanks" that were filled in by the unauthorized developer were done from imagination - does that alter the analysis? At this stage, it's unknown whether Page had an anti-nudity clause in her contract, and whether a 3D rendering of her body would qualify for the purposes of an Appropriation claim (there's some case law indicating that it might qualify). Basically, there are a lot of unknowns.

Here's what makes the whole thing even more fascinating: Sony, Beyond's distributor, is also the distributor for The Last of Us. This puts them in an awkward situation vis-a-vis their relationship with Page. Twice in one year she's become a victim of a high-profile game they released.  And once the pictures are out in the world, they're out there; there's no getting them back.

It'll be interesting to see if Page decides to pursue the matter legally. In the meantime, I'm sure she's learned her lesson: no more video games with Sony.