King’s TM App for CANDY Creates Chaos!

A misunderstanding of trademark law on the part of many media outlets lead to widespread backlash against King, the company behind the wildly addictive game, Candy Crush Saga.  Reports suggested King had obtained a trademark for CANDY and that no other game developers would ever be able to use that word.  candy crush

The truth is that the company has filed an intent to use application for CANDY with the United States Patent and Trademark Office and that application has been approved for publication.  Note that in the US, use in commerce must be evidenced before a registration is issued.  However, you can file an application on an “intent to use” basis if you have plans to use a mark but have not yet started selling the goods or services under that mark.  This filing basis gives you the benefit of securing your mark while in the planning/prototype phase so that noone else beats you to it.  That’s what King did.

Whether they will be able to establish use of the mark through evidence that they are selling games or apps under that mark is another question.  The evidence submitted to the USPTO must show the mark AS APPLIED FOR in use.  Their game is Candy Crush Saga, not just Candy, so it doesn’t look like they have the proper evidence to take their mark through to the next level (I’m on level 487 btw).

If they do submit the requisite evidence and obtain their registration, that does not mean that noone in the US will ever be able to utter the term “candy” without threat of immediate litigation.   The standard for infringement is a likelihood of confusion amongst consumers which is evaluated on a number of factors, including similarity of the goods or services, sight, sound or meaning, sophistication of the purchasers, etc.  There is potentially alot of room for games using the term CANDY to coexist.

It should be stated though that some trademark holders don’t always respect this room for coexistence irl and, judging by the current proceedings they are involved in at the Trademark Trial and Appeal Board, King may be one of those.   So, tread carefully out there in the game development world or you may wind up in a legal saga devoid of lollipops and chocolate.

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