King.com Opposes 'Candy Crunch' Trademark Application... From Actual Fruit Varietal Maker
from the sour-grapes dept
King.com and its flagship product, mobile game Candy Crush, have made it onto our pages several times in the past. The most common reason for that is that King appears to enjoy playing trademark bully. Fighting with the folks behind hit game Banner Saga, not to mention picking fights with any other game maker that uses the word "candy" in their titles, have become the norm. Notably, some of the time, when there is a severe public backlash over its antics, King has also shown that it is capable of running away from such disputes.
But if you thought that all of this would mean that King would somehow soften its bullying ways, think again. King recently opposed a trademark application brought by International Fruit Genetics over its application for "Candy Crunch". What does IFG do, exactly? Well, essentially what it sounds like it does: breeding of fruit variants.
IFG’s focus on breeding table grape varieties to please consumers delivers increased growth and profitability for retailers and growers around the world. With its breadth of exciting flavors and shapes with a full spectrum of colors of grape varieties, IFG is creating a grape sensation for consumers who are discovering that good tasting grapes can be an important part of their nutritional plan.
Okay, so the company makes real life, actual fruit variants. But what is its "Candy Crunch" product? Some mobile game the company is using to promote itself? A smartphone app to help farmers and growers?
No, it's a grape. A fucking grape.
Trademark Name: Candy Crunch™
Variety Name: IFG Twenty
Harvest: mid to late season black
Cluster size: medium
Berry shape: oval elongated
In case it isn't obvious to you, IRL fruit and mobile match 3 games are not remotely the same thing or in the same marketplace. There is also absolutely nothing to suggest in any of the website or marketing material for IFG that mentions any connection to the mobile game. And, yet, King apparently believes that its mark is simply so famous that market designations of this sort, or any actual customer confusion, are trumped by such notoriety.
The opposers have contested this because they have been cultivating their “Candy Crush” brand since 2004 with a host of games, computer software and programs, including their flagship, “CANDY CRUSH SAGA.” Furthermore, they have “continuously and extensively,” advertised their games and products, and their trademarks “have developed and represent valuable goodwill inuring to the benefit of Opposers.” The opposers claimed that the proposed Candy Crunch trademark is “confusingly and deceptively similar to Opposers’ previously used and duly registered CANDY CRUSH Marks.”
Because of this, the opposers alleged that the registering of Candy Crunch with the Trademark Office will cause them damages and are “likely to cause confusion, mistake, or deception that Applicant’s good are those of Opposers, or are otherwise endorsed, sponsored, or approved by Opposers for use with Opposers’ goods and services causing further damage to Opposers.” This is because Candy Crush is a well established and famous franchise, according to the notice, and would confuse their consumers if a similarly named product appeared on the market.
And that is absurd. Customers of IFG are fruit farmers looking to license variants for all matter of reasons, such as viability, yield, etc. Now, we could spend some time talking about whether that model should be allowed at all, but that isn't the purpose of this post. The point is that no fruit farmer is going to go to IFG, see one grape variant called "Candy Crunch", and somehow think it has anything to do with Candy Crush, the mobile game. That... just isn't going to happen.
In which case there is no confusion among the public. And there is no competition between the two products. Which means, my friends, there is no valid reason to oppose IFG's application.
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Filed Under: candy crunch, candy crush, grapes, trademark
Companies: ifg, international fruit genetics, king.com
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A semi compelling (if still very very stupid) counter point to that is: King.com's legal/IP teams are obviously very confused. And they qualify as members of the public.
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Morons in a hurry… to litigate.
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Imagine you want to download the Candy Crush game. But then you're at the supermarket and see Candy Crunch games. You buy them, but then you think you've already experienced the Candy Crush game, because you can't tell the difference between "Crush" and "Crunch," or between fruit and a mobile app.
What if a million people did that? Where would King.com be then?
Oh, wait. That's not how this works. That's not how any of this works.
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Candy Crunch grapes even. Need caffeine before posting.
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Having to license seeds is an evil of its own. See also terminator and 'inbreds' seeds, monsanto, and perhaps "seed independence".
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Well, that's not how grapes work, but yeah.
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There is probably more of a crossover between Candy Crunch (fruit) and Candy Kush (flower) - although many of those addicted to Candy Crush Saga probably know one of these already
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This post misses though what is likely the key (or at least a key) reason why King opposed the application. The application itself covers goods that include "Confectionary, namely, chewing gum, chewy sweets, chocolate confections, boiled confectionery made of sugar; hard confectionery made of sugar, jelly confections, lollipops; sherbet and sour lollies, toffee; ice cream; sorbet; edible ices; seasonings; spices; sauces; condiments for food and drink, being ketchup, mustard, barbeque sauce, and mayonnaise; custard" in Class 30. King has registrations for goods that include many of the same or similar goods in Class 30.
This isn't a question of video games vs. grapes. This is a question of whether the CANDY CRUSH mark King has registered is confusingly similar to the CANDY CRUNCH mark as applied for. Now a good argument could be made that the marks themselves are not that similar in appearance and on that basis confusion is unlikely. But to say that this opposition is about grapes vs software just misses the point.
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I've read the docket and while I'm probably in need of an IP lawyer to explain how the docket is structured to me, Activision-Blizzard-King's opposition seems rather absurd to me, unless ABG wants to start making candies with the Candy Crush brand.
Unless you're arguing that ABG also wants to also make cheap candy (a possibility, considering Kotick cut his teeth hawking ice cream before ruining the games industry), there is very little market crossover, which is why Geithner brought up the "fruit vs game" comparison.
Your argument isn't that clear. Are you, perhaps, arguing that their logos are similarly filed under Class 30? Because that is how I'm reading your argument.
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This is a trademark opposition in front of the TTAB, and as such the crux of the issue will come down to the descriptions of goods/services that are in the application filed by IFG, and the descriptions in the trademark registrations owned by King (now technically King probably can claim common law trademark rights beyond the descriptions in its registrations, but that is not needed to understand my point.).
Looking at IFG's application, it is seeking to obtain rights that go far beyond just grapes. It is seeking registration form among other things:
"Confectionary, namely, chewing gum, chewy sweets, chocolate confections, boiledconfectionery made of sugar; hard confectionery made of sugar, jelly confections, lollipops; sherbet and sour lollies, toffee; ice cream; sorbet; edible ices; seasonings; spices; sauces; condiments for food and drink, being ketchup, mustard, barbeque sauce, and mayonnaise; custard"
King has, among other things, a trademark registration for their CANDY CRUSH logo that covers:
"Bread; Ices; Sugar, honey, treacle; Sauces being condiments; Spices; Almond confectionery, namely, sugar-coated almonds; Biscuits; Bread rolls; Buns; Cake mixes being powder; Cakes; Candy; Candies; Caramels; Cereal bars; Cereal- based snackfood; Chewing gum; Corn Chips; Chocolate-based beverages; Chocolate and chocolates; Chocolate bars; Chocolate-based beverages with milk; Cocoa-based beverages;Cocoa products, namely, cocoa powder; Cocoa beverages with milk; Flavorings forcoffee; Coffee flavored syrup used in making beverages; Confectionary made of sugar for decorating cakes; Confectioneryfor decorating Christmas trees; Confectionery made of sugar; Cookies; Corn flakes; Cotton candy; Crackers; Custard; Edible ices; Frozen yogurt; Fruit coulis; Fruit jelly candy; Frozen confections, namely, freezer bars; Fudge; Gingerbread; High-protein cereal bars; Ice cream; Icecream drinks; Jelly beans; Ketchup; Lol- lipops; Marzipan; Marshmallows; Mayonnaise; Muesli; Noodle-based prepared meals;Oat-based snack food; Oat flakes; Oatmeal; Pancakes; Pasta; Pasta sauce; Pastries; Pastry; Peanut brittle; Pepper; Peppermint sweets; Petitbeurre biscuits; Petits fours; Pies; Pizzas; Popcorn; Powders for ice cream; Pralines; Puddings; Quiches; Ravioli; Rice-based snack food; Rice cakes; Sandwiches; Sauces; Seasonings; Sorbets; Spaghetti; Spices; Sugar; Sweets; Tacos; Tarts; Toffees; Tomato sauce; Tortillas; Waffles; ice milk and frozen yogurt"
So you see, there is an overlap between the description of goods in the King registration and the goods in the IFG application. And that is my point. Arguing that dispute is between grapes and software is not really true. The opposition is based on the goods as applied for, those include candies and what not, and King has trademark registrations that cover those goods. If IFG had perhaps only applied for grapes maybe their application would have gone through. It's hard to say though as of course King could still have taken the approach that gapes are similar enough to the food goods it sells (and maybe they do have a registration for grapes or some kind of fruit item, I didn't look that close). IFG would be in a better place though if there was not a direct overlap between the applied for goods and the goods listed in King's registrations.
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They may indeed have registered the trademark, but are they actually selling bread, ices, sugar-coated almonds, &c., under that name? I had understood them to be offering computer games.
If they are not using the mark in such commerce, then their opposition is not well taken.
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Er, Mr Judge?
‘
Excuse me, Mr Judge man? Mr Judge man?
I’m worried people will confuse the grape with our game. See, our game has grapes. Of sorts.
We can’t have that confusion!’
‘Wait, sir, your honourableness! What do you mean our game isn’t original. No, don’t look over there. Don’t look at that game sir! Ours doesn’t use pills or gems. It’s very different!’
‘Wait, wait, before you rule you need to remember we donated $10 to your election campaign! Remember! Remember!’
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