A lot of the statements here don't even make sense. For example:
" We’re not trying to stop Stoic from using the word Saga but we had to oppose their application to preserve our own ability to protect our own games. Otherwise, it would be much easier for future copycats to argue that use of the word “Saga” when related to games, was fair play. "
It's a little bit subtle but that's not quite what they are doing. From what I understand, King has a series of casual games with the name "<something> Saga." "Banner Saga" fits into that mold, and is in the same market segment, casual gaming, which creates the possibility that customers could be confused and assume the game is associated with King. Think about it this way: here's a list of games, which one doesn't belong? Candy Crush Saga, Bubble Witch Saga, Pet Rescue Saga, Farm Heroes Saga, Banner Saga? Just by looking at the names, a casual consumer might assume they're all from the same company.
That doesn't prevent someone else from using the word "Saga." For example, "LEGO Star Wars: The Complete Saga" is sufficiently different that it's much less likely that someone would confuse it with one of King's games.
Of course a quick Google search suggests that King's "<something> Saga" mark is pretty weak to begin with, because there area lot of games that are called "<something> Saga", although mostly in the console market rather than the casual online gaming market. But it's still proper for King to file the objection, because trademarks are "use it or lose it." And in a market like casual gaming, the mark really matters because customers are unlikely to do a lot of research into who publishes a game before dropping the $3.00 or whatever they cost.
And remember, this is an objection not a lawsuit. An objection is just a statement saying "we think this mark will cause confusion with our mark," so the PTO can take it into consideration in deciding whether to award the mark.
> Candy Crush Saga, Bubble Witch Saga, Pet Rescue Saga, Farm Heroes Saga, Banner Saga? Just by looking at the names, a casual consumer might assume they're all from the same company.
I understand the legal argument, but from a policy perspective, it's sort of perverse. Any casual consumer taking more than two seconds to look at Banner Saga would realize that it's not from the same company as Candy Crush Saga.
That's really the bigger annoyance IMHO. I'm all for King getting a trademark on "Candy Crush Saga" and then examining each potentially similar mark for confusion, but they're effectively taking the stance that the use of any one of the words in their trademark would confuse consumers -- see, for example, their cease and desist to "All Candy Casino Slots", even though the use of the word "Candy" is more descriptive than anything else.
Sure, because you'd only name it that to take advantage of consumer recognition of "Gears of War." You'd probably be protected by fair use if it was a legitimate parody, though.
> "Banner Saga" fits into that mold, and is in the same market segment, casual gaming
Er… no, unless you consider a desktop-based 12h tactical-rpg storytelling campaign to be in the same market as a match-three facebook-and-mobiles game.
IANAL, but my understanding is that if they didn't sue (or oppose the trademark, or whatever it is they're doing), they're afraid somebody else could create a "XYZ Saga" that is copying King's game and use the very existence of Banner Saga as a precent to why XYZ Saga is entitled to using the word "saga" as well.
What's not clear to me is whether there is anything King could do to protect their IP without harming Banner Saga. For example, could they sue Banner Saga, but then settle out of court and allow them a special exception?
When it comes down to it, it is a matter of whether or not the consumer is likely to be confused by the usage. King's statement seems to say that it is the combination of the usage of the 'Saga' suffix and a similar game mechanic that would give rise to confusion.
The question therefore arises as to what should be done with the 'Banner Saga' application. If King let it go, then this could serve as evidence that they are not concerned about the 'Saga' suffix. If they oppose, then they are seen to be attempting to take control of the 'Saga' suffix regardless of the game mechanic it is applied to.
The main problem is that the trade mark application would be unlikely to specifically identify the specific game mechanic that will be used. It is more likely to include reference to 'computer games' for example.
If King therefore let the application through, 'Banner Saga' could potentially be used with any game mechanic (and therefore serve as evidence that any game could use the 'Saga' suffix). King could have taken this approach and restricted Banner Saga's use via a coexistence agreement (mentioned below)(or by amending the classification), but negative PR aside, there is not much incentive for them to do this.
Further, although they could rely on the above strategy of showing confusion via a similar game mechanic AND the usage of 'Saga', this would be more difficult to prove if they permitted the registration. King are in a stronger position if they are able to say they are actively opposing applications, even if in certain cases this will result in negative PR.
On your last point, companies often enter into coexistence agreements, acknowledging that both parties can use an identical or similar marks (registered or unregistered) but under limited circumstances. This could be the case with Banner Saga for all I know...
Good point: If they show strong opposition and then the courts allow an exception then it is grounds in a future case that they do not simply take all .* Saga games as non-competing. They must actively attack opposing trademarks or have their claims invalidated. That's how the laws work. They can easily make a no-fee agreement with Stoic, but the law will still see that this was a c2c compromise and not a legal release of the Saga trademark.
"What's not clear to me is whether there is anything King could do to protect their IP without harming Banner Saga."
I believe the term you're looking for is trademark licensing.
So the trademark licensing contract would read something like:
1) Pay us $1
2) Plus legalese for "only valid as long as you don't disparage us in public" and "you are not to even joke about impersonating us" and "include a phrase similar to trademark used under license by King, somewhere in the ads/docs deep in the fine print."
3) Equals you get to use our "* saga" trademark, perhaps just this one game or just for a decade or whatever wiggly
(Note: The disney company has not sued every tee-shirt company they've ever hired to make a mouse tee shirt... this about the same kind of transaction, more or less)
Well said. Depending on their intention their lawyers will either make a very favorable licensing deal, or will ruthlessly attack Stoic. The point is there MUST be a strong opposition from King in order to protect the trademark in the future.
I'm surprised Square-Enix isn't getting involved in this mess, since it's not hard to imagine them wanting to resurrect the SaGa brand at some point in the future, if only for phone ports.
In trademark, generally what matters is when the mark is used in commerce, not filing date. This is because trademark is all about consumer association. From what I can tell, Candy Crush Saga came first.
Candy crush saga came out april 2012, while the banner saga's kickstarter campaign had already begun in march of 2012. People were already throwing money at them and investing in their application. Does that matter at all?
Interesting, I didn't know they had a Kickstarter. It's a novel question, because trademark is established by "use in commerce." Is a Kickstarter page "use in commerce" before a product exists? On one hand, you can't just lay claim to a name saying "we intend to make a product in the future with this name." That's not use in commerce. But a Kickstarter is a lot more concrete than that.
Trademark laws are shitty, just like IP laws. But that just refers to brand names. It's not as bad as copyright trolling but there is a limit to what you can create as brands. Eventually like domain names we will run out of them.
The expected next step. Instead of self-reflection on whether their actions are evil, or at least unscrupulous, they post a rationalization with all fluff and no content. If there was any honesty at King before, it's gone now.
I'm so extremely annoyed at King. Banner Saga is such a fantastic indie game that is quite obviously not related to King's games. IP law in America is completely broken and them exploiting it to harm a small indie is enough to land on my hated companies list.
How so? It fits the regex of numerous King games, something like /^.+\s+Saga$/
What I don't understand about the response is if they wanted to be jerks they'd sue Banner Saga guys and "Lego Star Wars: The complete SAGA" also. Or if they wanted to get massive internet karma basically for free they'd license the use of the "banner saga" name to the makers with an extra clause that its only $1 as long as its the last time they ever name something "* Saga". But no they march right down the middle taking neither side.
I don't think anyone involved would be very amused if I changed my HN name to "jaegerpicker saga" and started posting rants about how "I" love american IP law.
Of all the stinky things about IP law, this sort of reputation management / consumer protection system is the least stinky. Oh don't get me wrong, it is in fact stinky, just everything else in that general area is worse.
It's not related because King's games are on completely different platforms and of a completely different type. The overlap in players has to be pretty small. Beyond that the word Saga has been used for an extremely long time prior to King existing. The name Saga as in the Scandinavian Saga's are central to the games themes.
Honestly I wouldn't care if you posted under jaegerpicker saga, that doesn't affect the quality of my posts. Sure there are worse things about IP law but all of it's bad and I'm against any company that uses it as a weapon.
Its to prevent confusion. jaegerpicker, now is he the guy who likes American IP law or hates it? Imagine you getting sued because of something a copycat who stole your name wrote. What a drag for you.
I just don't see trademarks as all that bad. As a thought experiment, imagine a world without a trademark system, it would suck for everyone. Customers getting scammed, legit businessmen getting ripped off / shaken down, nobody knows who is the "real" company so lawsuits and the like all messed up, everyone gets to pay legal fees either directly or indirectly via higher prices, it would basically suck.
Or to "humanize" the process you could demand words in a dictionary can't be trademarked, which would lead to a world of cruddy brand names like "DBA VLM inc" or something like the ridiculous pharma names, at least until every phoneme combination is used up, which could be worked around by making every trademark a ridiculously long string of Klingon language.
I mean, it sometimes sucks, but is there anything that sucks less, and what would it look like? And thats where the crickets are heard. Well anecdote, special exception, unusual situation, anecdote, anecdote isn't going to do it if you want to apply it to the entire economic system. If you try to blue sky the whole idea and create a new trademark system that works as well as possible for as many as possible, it pretty much ends up as the current system plus or minus some "minor" details about punishment and paperwork and policies.
The totally garbage anti-capitalist copyright system and anti-capitalist patent system give the trademark system cooties by association, although trademarks aren't nearly as bad.
The first two, I could accept from a certain IP lawyer viewpoint. The first contained an amusing non-admission admission, but they took down the game, and I'll let it slide, from my perspective. The second one was a stretch, but they provided existing examples, and I can see their point even if I don't agree with it.
That last one though was ludicrous: "We’re not trying to stop Stoic from using the word Saga but we had to oppose their application to preserve our own ability to protect our own games."
In order to save the village, we had to destroy it.
I don't play that many games on my phone or tablets, so I don't have a dog in this fight directly, but now I guess I'll never make my app SagaNoteAngryFruit.
As I understand trademark law (which is, poorly), if you don't take the opportunity to prosecute things which MIGHT infringe, you lose credibility when you attempt to prosecute things which DO infringe.
For example, a company could create a game that DOES use "Candy" and "Saga" in an infringing manner, and they could argue that since King didn't prosecute The Banner Saga, that they're no longer actively protecting their trademark, and thus it's no longer valid.
Now, I disagree with a bunch of things King has done in general, but this part specifically seems to be largely due to shitty trademark law. I could easily be wrong though, but I've seen this reason cited for a bunch of other cases, the Scrolls/Elder Scrolls case in specific.
They are right that in order to protect a trademark you have to actively prosecute users, but it makes me wonder why not sue Candy Crush™ instead of the overtly generic Saga.
So they are subjecting Banner Saga to a lawsuit, harming them, their reputation, with full knowledge that it's not an applicable argument. So they are knowingly causing monetary harm to another company not affecting them, who will then have to deal with legal costs. These guys are evil. And a blog post does not refute that.
I don't want to be an IP abolitionist, per se. I know enough artists who would be outraged at the very suggestion, even though they make essentially nothing from direct sales of their work. Still, examples like this give one pause. It is hardly an isolated case, that the large company acts with impunity, and the infringed party is limited to at best a moral victory and perhaps some trivial restitution. If the system is designed to favor the interests of those with the greatest ability to protect their own interest, as seems to be the case, then is it not superfluous, if not indeed harmful?
The actions of King here are certainly fuel for the discussion, but clearly the self-serving justification is enough to leave a bad taste in the mouths of all but the most devoted adherents to their cause. On the other hand, they seem to say often enough that they are an ethical company and do not attempt to restrict the rights of others. The pessimist in me fears this is true.
I don't understand your angle with respect to this particular situation. Stoic is filing for the right to enjoy exclusive use of the term "Banner Saga" with respect to online games, and prevent others from using the term. King filed an objection to that application, not saying that Stoic couldn't use the name, but saying that they shouldn't get exclusive use of the name because King already had a series of games with that naming pattern. What's the outrage here?
"Saga" is much, much more sweeping than "Banner Saga". It's like the difference between trademarking "Quest" vs. "King's Quest". In fact, it's just like trademarking "Quest", "Legend", "Adventure", "Story", etc.
This is both correct and concise. Trademarking the three single words "candy", "crush", and "saga" is much broader in scope than those same three words in combination, as "candy crush saga".
Some parts of trademark convention are oddly specific, down to fonts, colors, capitalization, and parts of speech. For instance, you can't play with "Legos." They do not exist. You can only play with "LEGO bricks." The trademark is all caps and is an adjective, never a noun. You define narrowly, and enforce broadly, so that there is a clear no-man's land of similar marks around your brand.
Companies with competent lawyers will often spend thousands of dollars on trademark research reports before using a mark in commerce, and then spend tens of thousands every year on brand protection services. Back when I worked for a company that sold exactly those services, our research reports for "candy" and "saga" would have essentially summarized to "Register a different mark, dumbass," translated into tactful legalese.
"We’ve been the subject of no little scorn for our actions on this front, but the truth is that there is nothing very unusual about trademarking a common word for specific uses. Think of “Time”, “Money” “Fortune”, “Apple”, and “Sun”, to name a few."
Are any of those words trademarked wrt the title of a computer game? Isn't this analogous to trademarking words within song, film, or book titles?
Titles of standalone literary works are generally not trademarkable. You need to have a series (Harry Potter) or significant commercial tie-ins (Spaceballs: The Lunchbox) to pull it off.
King's "Saga" games do not appear to be a series so much as an attempt at a branding umbrella. That's much weaker than "Elder Scrolls", which is a series with common elements. Just "Scrolls" by itself is a long stretch, as the company did not produce other series with that word in it, like perhaps "Younger Scrolls" or "Forbidden Scrolls" or anything other than "Elder Scrolls", so confusion with "Magnetic Scrolls" was very unlikely.
Again, as software falls largely under copyright, I don't think King has a leg to stand on from legal tradition. But our courts don't necessarily do what we think they should, either.
I think a better analogy might be if Fortune magazine tried to claim that because of their (valid) claim to the name "Fortune", no one should be able to start a magazine whose title starts with the letter "F".
Your analogy is good, but an even better one would be no one should be able to start a magazine who's title is "Bitcoin Fortune", your guide to financial news in the new online economy, or something like that. You could even imagine the front cover of the infringing magazine, a tiny little BTC at the very top and the standard "FORTUNE" right underneath along the top of the magazine, just like the real magazine.
Yet another example of the problem of companies being beholden only to the interest of their shareholders. They can follow a stupid law, even go beyond it, but it never occurs to them to spend some of that cash pile on, instead, trying to fix a broken system that would allow them & others to trademark common words like "candy" or "saga" in the first place.
Candy crush has shaped boards, and is thus a clone of any of the other similar match 3 games. Candy crush has some different power up me hanics too.
There are a gajillion match 3 games and they're all similar, but that doesn't make them all clones. Especially when they're as different as candy crush and bejeweled are.
Except, Candy Crush does go beyond simply being a match 3 game, in that all the base mechanics as far as what happens when you match 3, 4, and 5, are pretty much lifted exactly as-is from Bejeweled.
...they're the same as very many other match three games.
Candy Crush includes special actions when you match 2 power ups. Bejeweled clears the board if you match two spinning cubes (the result of a match 5) but other than that matching two power ups doesn't do anything special.
" We’re not trying to stop Stoic from using the word Saga but we had to oppose their application to preserve our own ability to protect our own games. Otherwise, it would be much easier for future copycats to argue that use of the word “Saga” when related to games, was fair play. "
Except, that is exactly what they're doing.