Our readers are probably familiar with a game that can be played on Facebook or on a mobile device known as CANDY CRUSH SAGA. Also available on Facebook and on mobile devices is another game called CANDYSWIPE. This posting summarizes the trademark application dispute between the two companies, one of which has leveraged the power of social media for support.
Earlier this year, an open letter to King.com Limited, the developer of Candy Crush Saga, went viral, informing all who would read the letter by Albert Ransom, president of independent game developing studio Runsome Apps, which was written at the end of his 2013 trademark dispute with King.com. Ransom’s letter details the story of his creation of the game “Candy Swipe” two years before King.com’s own game was published, as well as the similarities between his game and “Candy Crush Saga.”
The focus of Ransom’s letter, however, deals with his company’s (Runsome Apps Inc.) opposition of King.com’s U.S. federal trademark application for the mark CANDY CRUSH SAGA (which covered, among other goods, “computer game software”) on the basis of likelihood of confusion with Runsome Apps’ CANDYSWIPE mark, which was covered by a U.S. federal registration covering “computer game software for use on mobile and cellular phones.” After spending the better part of a year “fighting the good fight,” Ransom’s letter openly admitted defeat at the hands of King.com, due primarily to its trademark litigation technique.
Runsome Apps’ initial complaint alleged that the similarities between CANDY CRUSH SAGA and CANDYSWIPE, as well as the goods offered under the marks, created a likelihood of confusion (which Runsome Apps evidenced by actual comments from the apps’ online reviewers). (Runsome Apps Inc. v. King.com Limited, ¶ 4-5, Opposition No. 91210162 (TTAB April 9, 2013)). Moreover, Runsome Apps alleged that “CandySwipe” had been in use since November of 2010, giving it prior rights over King.com, which allegedly began using “Candy Crush Saga” as late as March 12, 2012. (Id. at ¶ 9-10).
During the pendency of the proceeding, however, a company called AIM Productions N.V. assigned King.com all right, title, and interest in its common law trademark CANDY CRUSHER, which AIM had been using in connection with game software since as early as 2004 (Id., Amended Answer to Notice of Opposition and Counterclaim, Affirmative Defenses ¶ 2). Accordingly, and now armed with “first use” dates that preceded CANDYSWIPE, King.com alleged that it had priority of use for these “CANDY-” variant marks, and countered Runsome Apps’ opposition with a petition to cancel Runsome Apps’ registration for CANDYSWIPE.
Ransom described this tactic in his letter:
Now, after quietly battling this trademark opposition for a year, I have learned that you now want to cancel my CandySwipe trademark so that I don’t have the right to use my own game’s name. 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). Good for you, you win.
Despite the online backlash against King.com after Ransom’s letter went viral, Candy Crush Saga is currently listed as the second “Top Grossing” game on Apple, Inc.’s mobile app store.
Since the letter was published, the Facebook page for “CandySwipe” announced that Ransom had “[d]ecided not to give in” and that a Kickstarter funding campaign is now being launched to “raise money to make a bigger, better CandySwipe.”
Runsome Apps’s opposition of King.com’s U.S. federal trademark application for the mark CANDY CRUSH SAGA remains pending before the U.S. Trademark Trial and Appeal Board in the early stages of the proceeding, with Runsome Apps having until June 10, 2014 to file its Answer to King.com’s counterclaim to cancel Runsome Apps’ U.S. federal trademark registration for CANDYSWIPE.
This article was prepared by Justin Haddock (justin.haddock@nortonrosefulbright.com / +1 512 536 3024) is a lawyer in Norton Rose Fulbright’s Austin intellectual property practice.
