What If The Era Of Video Game Mashups Is About To Begin?

from the hoo-boy dept

Search the Techdirt pages for the term "mashup" and you will see a metric ton of ink spilled on the topic. Most of those posts deal with the copyright implications of mashup creators, be they for music or literature. It is, frankly, a tortured landscape largely littered with the metaphorical bodies of artists creating new and interesting artwork by combining previous works to create something new. Music is the easiest entry point for those not in the know. Take the music from one song and lyrical output from another, put them together, and you get something new and interesting. When done well, the results are mind-blowing. As are the constant attacks from original creators and rightsholders that seem to see such mashup work as a threat to the originals.

But what about the video game space? Go poke around for terms like "video game mashup" and you'll get plenty of results, but all of them discussing theoretical mashups. You can get a Cracked article entitled "4 Video Game Mashups Too Awesome To Exist", or a GameRant post entitled "5 Video Game Mashups That Would Blow Our Minds". Even in those headlines you get a common theme: we wish we could have these things, but they don't exist.

Well, at least one does. Crusader Blade is a mashup mod combining Paradox Interactive's Crusader Kings 3 and TaleWorlds Entertainment's Mount & Blade 2: Bannerlord. Confused? Well, this will take some brief background.

Mount & Blade puts the player in a medieval fictional world and allows them to hack and slash their way to glory, fighting battles alongside the rest of their army, with some RPG elements thrown in. The battles featuring hundreds of combatants are really the sell for the game, however. Crusader Kings 3 is a medieval grand strategy game focused on diplomacy, intrigue, relationship management, managing a family dynasty, and warring with other nearby kingdoms and realms. My listing warfare last was not coincidence. The warring part of the game is extremely barebones by modern standards, literally just showing an avatar for an army that marches and then fights to a mathematical outcome. Think of the battle sequence like one in a Civilization game. It's not an afterthought, but it's close to one.

What this mod has done is make owners of both games able to seamlessly use both games to play both the grand strategy portions of Crusader Kings and conduct actual battles using Mount & Blade. Yes, seriously.

Crusader Blade is a mod that lets you directly control any battles taking place in the game by literally using a whole other video game to do it. That game is medieval combat title Mount & Blade II: Bannerlord, and in the simplest sense possible, the mod works by pausing CKIII at the time of a battle, switching over to Mount & Blade so you can resolve it, then switching back again.

And here you can see the mod in action.

The comments both on Twitter and in that YouTube video can be generally sorted into two categories. The first and most prevalent can be paraphrased universally as "Oh my sweet god I want this right now!". Descriptions that this mod has created "the greatest game ever" are common.

But the second category can be described as sincere concern that either Paradox Interactive or Taleworlds Entertainment firing off cease and desist letters, issuing DMCA takedowns, or otherwise taking action on the mod as some sort of copyright infringement. And those concerns are entirely understandable, given all the copyright action that has occurred over mashups in other entertainment genres.

To be clear, those fears don't appear to have come true as of yet. And to continue to be clear, such actions by the game studios would be asinine. In fact, we can perhaps say that the video game industry is uniquely positioned to be fully accepting of a new video game mashup world like this should this sort of thing flourish. The reason for that is because mashups like this require the player to have copies of both games in order for it to work. In other words, this mod is likely chiefly doing two things: giving the players of each individual game a reason to buy the other and rewarding players that have already bought both.

What does that sound like to you? Because to me, it sounds like an incredible way to increase sales of both games at the cost of not being the copyright fun police with their games. We'll see both if this sort of game mashup becomes more than a one-off and if the industry can stay out of its own way.

Filed Under: mashups, video games

Austin Homeowners Association Pitches In To Help Cops Kill A Guy Over Uncut Grass

from the all-american-dystopia dept

This is one of the most horrendous -- and one of the most American stories -- I have ever read. It encompasses a lot of distinctly American issues, ranging from law enforcement violence to the disturbing ability of private individuals and entities to reliably summon law enforcement and bring about the destruction of others.

It starts, as so many stories about police violence do, with some needlessly exonerative reporting by journalists -- in this case by Elisha Fieldstadt of NBC News.

An attempt by Austin, Texas, officials to serve a search warrant and provide lawn care resulted in shots fired, an hourslong standoff, a house fire and a death, police said Wednesday.

You'll immediately notice two things about this sentence. First, there's the phrase "provide lawn care" -- the sort of service that wouldn't normally generate local news headlines, much less coverage from a national news network.

The second thing you'll notice is the phrase "resulted in shots fired," as if the end result of these actions were the inevitable outcome of "providing lawn care." This, of course, is an absurd statement. It's also absurd to write that something resulted in something when it involves police shooting someone because the fact is police shot and killed someone and that's what should be noted, rather than semi-obscured with phrasing that suggests police were powerless to stop their own violence.

Nothing about this gets any better. The word "warrant" carries the implication that some serious crime was the impetus for this deployment of Austin police officers. But it was only a "nuisance" search warrant, which means the only crime committed was administrative -- a violation of homeowner-focused codes that aren't considered actual criminal offenses.

Here's how the Austin PD describes this arm of its law enforcement efforts:

The Nuisance Abatement Unit is composed of one Detective and one Sergeant. The Nuisance Abatement Unit works “behind the scenes” with property owners and other city departments in an attempt to first gain voluntary compliance with properties that have been deemed a “nuisance”.

It's a two-officer office. But this "nuisance" homeowner was confronted by an unknown number of police officers and code enforcement officers. And that's before things went haywire, resulting in the arrival of the Austin PD SWAT team, mental health officers, and a crisis negotiator.

Who knows what was going on in the resident's mind? And, I guess, who cares, now that he's dead? Several hours were spent trying to get the resident out of his house… to mow his lawn? Sometime after the officers left a warrant posted on the door and "code enforcement officers" began mowing the resident's lawn, the resident decided to start firing his gun from inside his house. At whom, it doesn't say.

The SWAT team rolled in, along with its presumably less-violent entourage, leading to a standoff that was broken by the resident again firing his gun from inside his house. The cops sent a robot in to deal with the resident and his gun. That's when officers noticed the house was on fire. This finally prompted the resident to leave his house, which he did through his garage while carrying guns. At that point, SWAT team members shot him.

That leads to another tragicomical bit of view-from-nowhere reporting:

"At that time, a SWAT officer shot and struck the resident who went down with a gunshot wound," [Austin Police Chief Joseph] Chacon said.

Officers got the man away from the house and treated him before he was taken to a hospital, where he died. It's unclear what caused his death.

Really? That's the reporting? Presumably the man left the house without any bullets in him. He went to the hospital with at least one bullet in him. People who have zero bullets in them tend to remain alive. People with bullets in them have a greatly reduced chance of surviving. It seems pretty clear what caused his death. This paragraph shows an alarming amount of deference to the sources for this reporting, all of which appear to be law enforcement officials.

The final insult to the dead man are the last two sentences of the article, one of which features Austin PD spokesman Jose Mendez.

Their main goal Wednesday was to get the man in compliance with the local homeowners association.

“They attempted to cut the lawn for him, and this is the reaction they got,” Mendez said.

In other words, the HOA got him killed. A complaint about the length of grass resulted in shots fired, a standoff, and a dead Austin resident. And it's all capped off with the police spokesperson blaming the dead man for the chain of events that ended in him being killed by officers.

There's the cautionary aspect of this incident: anything code or law on the books will, at some point, need to be enforced. And that's how people end up being killed over lawn care, with an assist by entities that wish they could be as powerful as the people they rely on for enforcement: homeowners associations.

Filed Under: austin, grass, hoa, homeowner's association, lawn care, police, police shootings, texas

Chip Shortages Mar Starlink's Long-Awaited Exit From Beta

from the potentially-undercooked dept

Elon Musk's Starlink has finally exited beta, but chip shortages may mar the low-orbit broadband satellite venture's big day. The company has technically stopped calling Starlink a beta product, but warns in a new FAQ on its website that users expecting shipments of their new satellite dishes may be waiting a while:

"Silicon shortages have delayed production which has impacted our ability to fulfill orders. Please visit your Account page for the most recent estimate on when you can expect your order to be fulfilled.”

Over 500,000 users have signed up for the broadband service which delivers speeds of 100 Mbps or more for $100 a month (plus a $500 first month equipment charge). Users who had signed up for the service were already complaining that Starlink often just doesn't respond to customer support inquiries asking when a user's dish will ship, and this was before chip shortages entered the picture. There was also another Starlink website bug revealed this week that pushed back user pre-order dates by a year or more if they made tiny account changes.

Early reviews of the service have also been decidedly mixed, with complaints about line of sight and sporadic outages.

Starlink has consistently been heralded as a potential solution for the U.S.' broadband competition problem, but capacity and physics mean the service's overall reach was always going to be limited. Even Musk, who has a propensity to oversell his products, has acknowledged that the service won't be able to offer service in most densely populated urban and suburban areas. In other words, U.S. monopolies aren't sweating Starlink's entry into the market.

Early, pre-chip shortage estimates suggest that Starlink will struggle to deliver service to somewhere between 500,000 and 800,000 users, with many of those spots likely gobbled up by Musk fans. The service's $600 first month price point is also out of reach for the millions of Americans who can't afford broadband. With up to 42 million Americans without broadband access -- and another 83 million living under a monopoly -- even Starlink's maximum potential impact (which assumes the company can remain financially viable) will barely put a dent in the problem.

So yeah, Starlink will be a very good thing if you can get it, can afford it, and have no other options. But actually getting it will likely prove tricky for many. That's why there was some annoyance at the FCC throwing millions of dollars in subsidies at the planet's richest man for a service even he acknowledges many be tricky to keep financially viable over the longer haul.

Filed Under: broadband, chip shortages, competition, satellite, starlink
Companies: spacex, starlink

Copyright Troll Richard Liebowitz Suspended From Practicing Law In New York

from the sorry-richard dept

We have a loooooooooong list of stories about copyright troll Richard Liebowitz and his never-ending antics in court. As we noted earlier this summer, he's been getting suspended from practicing law in courts all around the country (while also piling up more and more sanctions). And while he'd already been suspended in various NY federal courts, he's now been entirely suspended from practicing law in the state of New York. The NY state courts were following up on the federal court in the Southern District of New York suspending Liebowitz, and sought to impose a reciprocal suspension.

The ruling from earlier this week lays out the details of just a very small fraction of Liebowitz's long history of lying to courts and other misbehavior. It then responds to Liebowitz's attempt to wriggle out of this suspension by arguing that he was simply advocating for his clients as best he could, and also that his initial suspension was temporary and "he has not had a full and fair opportunity to litigate the matter in that forum."

The judges reviewing his case are... unimpressed:

We find no merit in the respondent's due process contentions. As opposed to the "cursory nature" of the sanctions hearing in Matter of Dunn (24 NY3d at 704), here the respondent was provided a full and fair opportunity to litigate the disciplinary matter before the Southern District imposed an interim suspension. The record confirms that, prior to imposing interim discipline on him, the Southern District gave the respondent notice of the proceeding, by order to show cause. He was given the Statement of Charges and an opportunity to respond. He availed himself of that opportunity, and submitted a 27-page declaration. With the annexed exhibits, his submission was almost 900 pages long. He will have the chance to defend the charges against him at a full evidentiary hearing in the Southern District before that court imposes final discipline. The respondent has cited no authority for the proposition that the procedure followed in that forum prior to imposing interim discipline did not comport with due process.

Similarly unpersuasive is the respondent's argument that the Southern District's interim determination cannot form the basis for this Court to impose reciprocal discipline at this time. The applicable rule, 22 NYCRR 1240.13, does not require that a foreign order of discipline be final in order for this Court to impose reciprocal discipline. The rule requires proof that the attorney has been "disciplined" by a foreign jurisdiction (id. § 1240.13[a]), and provides that after the attorney has had a chance to be heard, upon review of that jurisdiction's "order" and the record of proceedings there, if relevant, this Court may discipline the attorney for the misconduct committed in the foreign jurisdiction (id. § 1240.13[c]). Notably absent from the text of the rule is any requirement that the foreign jurisdiction's discipline, or the order reflecting it, be final.

Where, as here, the foreign jurisdiction has afforded an attorney an opportunity to be heard and determines that, in light of the nature and seriousness of the charges, the strength of the record supporting those charges, and the risk and danger of recurrence, an interim suspension is necessary to protect the public interest, this Court may, upon review of the order and record of the proceedings, reciprocally impose an interim suspension (see Matter of Perskie, 158 AD3d 19; Matter of Hummel, 99 AD3d 133; Matter of Gray, 110 AD2d 672, affd 67 NY2d 440).

As for the idea that he was doing his best to represent his clients' interests... yeah, that wasn't going to fly either:

The respondent's misconduct in litigation has at times endangered his clients' prospects of recovery, and put his adversaries to needless expense. He has shown disrespect for the courts, as is demonstrated by his admitted conduct before Judge Seibel in the Berger case. His actions in that case included multiple misrepresentations, defiance of her orders, and explicit questioning of her authority as she attempted to probe the truth of his asserted reason for failure to appear at a conference.

The court also doesn't buy Liebowitz's more recent attempts at contrition (I'll note that he's tried to do this many times before when yelled at by courts):

In addition, despite his recent attempts at introspection and contrition, the respondent nonetheless minimizes frequent behavior that made a mockery of orderly litigation processes by attributing it to "sloppiness" and "administrative failures." The existing record from the Southern District supports its conclusion that, given respondent's history of repeated disregard for court orders, recurrence of his misconduct is likely. We find that the respondent has engaged in conduct immediately threatening the public interest and his immediate suspension from the practice of law is warranted.

Of course, we've heard that other lawyers have picked up Liebowitz's practice where he left off, so the copyright trolling continues...

Filed Under: copyright, copyright troll, new york, richard liebowitz

Daily Deal: The Complete 2021 Cybersecurity Super Bundle

from the good-deals-on-cool-stuff dept

The Complete 2021 Cybersecurity Super Bundle has 24 courses designed to help you become a cybersecurity expert. You'll learn about network security, database security, cloud security, and project management security procedures. It's on sale for $70. Use the code SAVE15NOV to save an additional 15% off this bundle and sitewide on other deals.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Senators Tillis And Leahy Raise The Alarm About Judge Albright's Patent Forum Selling In Waco

from the good-for-them dept

At times I've been at odds with Senators Pat Leahy and Thom Tillis regarding their view on intellectual property (though Leahy has a good history on patent law -- Tillis... not so much). However, kudos to both of them for recognizing a very, very real problem in the way in which Judge Alan Albright has been engaged in what's been called jurisdiction selling.

If you don't recall, Judge Albright, who was a patent litigator before being appointed to the bench in Waco, Texas, went on tour advertising that patent plaintiffs should file in his district court (where he is the only judge). And, this resulted in a ton of cases all being filed there. And despite Supreme Court precedent that says judges need to be willing to transfer patent cases to proper venues, Albright has been thumbing his nose at higher courts and seeming to do everything he can to keep cases in his court.

And now, both Tillis and Leahy are ringing appropriate alarm bells over Albright's activities. Leahy and Tillis together have sent a letter to Supreme Court Chief Justice John Roberts to call out Judge Albright's behavior. It is not often that you see two Senators (who lead the IP subcommittee, no less) sending a letter to the Chief Justice to accuse a district court judge of being up to no good. It's quite a letter.

We write you to express our concern about problems with forum shopping in patent litigation. Our understanding is that in some judicial districts, plaintiffs are allowed to request their case be heard within a particular division. When the requested division has only one judge, this allows plaintiffs to effectively select the judge who will hear their case. We believe this creates an appearance of impropriety which damages the federal judiciary's reputation for the fair and equal administration of the law. Worse still, such behavior by plaintiffs can lead individual judges to engage in inappropriate conduct intended to attract and retain certain types of cases and litigants.

We are particularly concerned with this problem in the context of patent litigation. In the last two years our nation has seen a consolidation of a large portion of patent litigation before a single district court judge in Texas. In 2016 and 2017, this single district court heard only, on average, one patent case per year. Last year, however, nearly 800 patent cases were assigned to one judge in this district. This year, this district appears to be on track to have more than 900 cases. This means that roughly 25% of all the patent litigation in the entire United States is pending before just one of the nation’s more than 600 district court judges.

The concentration of patent litigation is no accident. We understand that a single judge in this district has openly solicited cases at lawyers’ meetings and other venues and urged patent plaintiffs to file their infringement actions in his court. Our understanding is that this single judge has also repeatedly ignored binding case law and abused his discretion in denying transfer motions. This has resulted in a flood of mandamus petitions being fled at the Federal Circuit. The Federal Circuit has been compelled to correct his clear and egregious abuses of discretion by granting mandamus relief and ordering the transfer of cases no fewer than 15 times in just the past two years.

The extreme concentration of patent litigation in one district and the unseemly and inappropriate conduct that has accompanied this phenomenon are, in our view, the result of an absence of adequate rules regulating judicial assignment and venue for patent cases within a district. While we do not know of similar problems occurring in other single-judge districts, it is not hard to imagine similar scenarios arising under a set of rules that allows a plaintiff to effectively choose a particular judge to hear their case. In order to correct these issues, we request that you direct the Judicial Conference to conduct a study of actual and potential abuses that the present situation has enabled. Additionally, we ask that such a study consider and implement appropriate reforms that you can take to address this issue. Finally, we ask that such a report provide legislative recommendations to ensure this problem does not arise in the future.

While simply asking for a study and exploring reforms may not seem like a big deal, it does seem like a warning shot. If something isn't done to fix this by the Judicial Conference, then Congress may need to step in.

Meanwhile, on the same day Tillis sent another letter (without Leahy) to the current commissioner for patents at the USPTO calling out a separate issue involving Judge Albright. This gets a bit deep into the weeds, but, as we've covered, there have been ongoing fights over the whole inter partes review process. This is where certain patents can be challenged before a special patent review board -- the Patent Trial & Appeal Board (PTAB) -- which is charged with determining whether or not the original patent was granted in error. Patent holders hate hate hate hate the PTAB/IPR process and have been looking to kill it for some time. A key part of their argument is often that it involves two different processes -- sometimes in parallel for killing a patent. The patent can be challenged both in court during a case, and before the PTAB via IPR. Last year, in the Apple v. Fintiv case, a rule was put forth that the PTAB would deny the IPR process to cases that were far enough along, to prevent two parallel challenges to the patent (with possibly opposing outcomes) happening at the same time.

This new letter from Tillis highlights how Albright appears to be using this ruling to block PTAB IPR challenges by scheduling unrealistic trial dates, which are then used to block the PTAB from going forward with an IPR.

As you know, Fintiv instructs the PTAB not to institute an Inter Partes Review (“IPR”) procedure to challenge a patents validity if the panel deems it to be more efficient to allow parallel district court litigation to proceed based on a balancing test comprising six non-dispositive factors. Again, while I strongly support the policies underlying Fintiv, my concern relates to the PTAB’s application of the second of these factors: the proximity of the court's trial date to the PTAB’s projected statutory deadline for a final written decision. Specifically. I am concerned that the PTAB’s historical practice of crediting unrealistic trial schedules. This has not only produced outcomes that are untethered from the policy underpinnings of the Fintiv rule, but it has also created harmful incentives for forum shopping and inappropriate judicial behavior.

The negative consequences are most pronounced in the Waco Division of the U.S. District Court for the Western District of Texas. The sole judge in that division schedules very early trial dates for all patent cases assigned to him. Often, these dates prove to be not just unrealistic, but they [sic] impossible to fulfill as multiple conflicting trials are frequently scheduled to occur on the same date before the same judge in the same courtroom. However, because PTAB panels interpret Fintiv to require scheduled trial dates to be taken at face value, panels have regularly exercised discretion to deny institution of IPRs in deference to litigation pending before that district.

Tillis doesn't hold back that this is mostly because of Judge Albright:

To be clear, Ibelieve judicial conduct is partly to blame for this situation. Once a case has been filed in the Waco Division, many defendants have found it all but impossible to persuade the division's sole judge to transfer the case to a more appropriate venue. In denying such transfers, the court has repeatedly ignored binding case law and abused his discretion. This misconduct has resulted in a flood of mandamus petitions being filed at the Federal Circuit, The Federal Circuit has been compelled to correct his clear and egregious abuses of discretion by granting mandamus relief and ordering the transfer of cases no fewer than 15 times in just the past two years.

Notably, in granting these petitions, the Federal Circuit has cast grave doubt on the reliability of the Waco Division's trial schedules and claims regarding efficiency of adjudication. The appellate court has strongly criticized the division's improper reliance on purportedly greater “congestion” in transferee courts in attempting to justify inappropriate denials of transfers under 28 U.S.C. § 1404(a). More specifically, the Federal Circuit has refused to credit the division's overly optimistic assumptions regarding the time-to-trial in cases, admonishing the division's judge that a “proper analysis” considers “the actual average time to trial rather than aggressively scheduled trial dates." Moreover, the circuit court has also implicitly questioned whether even amore accurate “proper analysis” based on precise caseload counts and the accurate time-to-trial statistics produces a reliable assessment of relative court congestion, characterizing this analysis as mere “speculation.”

Tillis concludes by basically saying that the PTAB should ignore trial dates set by Albright in doing a Fintiv analysis:

Based on the facts currently available to me, it is difficult to imagine any plausible justification for the continued reliance on the demonstrably inaccurate trial dates set by the Waco Division. I therefore ask that you undertake a study and review of this matter and consider whether Fintiv should be modified to account for unrealistic trial scheduling. I ask that you complete this review and implement appropriate reforms based on your findings by no later than December 31, 2021.

It's pretty incredible for a single judge to get this much attention, let alone two separate letters calling out his behavior. Of course, seeing as he's done little to change his behavior despite the Federal Circuit continuing to push back on his activities, it's unclear if any of this will change how Judge Albright acts.

Filed Under: alan albright, forum selling, forum shopping, inter partes review, ipr, john roberts, pat leahy, patents, ptab, thom tillis, uspto

U.S. Broadband Growth Slows As the Profit Party Grinds To A Halt

from the do-not-pass-go,-do-not-collect-$200 dept

For years we've watched major cable TV providers lose traditional cable TV subscribers hand over fist to cheaper, more flexible streaming alternatives. It was a trend that only accelerated during COVID. Don't feel too badly for companies like Charter and Comcast however; the companies' growing monopoly over faster fixed-line broadband across huge swaths of the country have allowed them to recoup their pound of flesh via broadband fees (or unnecessary usage caps) without much in the way of repercussion.

But there's signs that the cable broadband party could be slowing down. Both Comcast and Charter (Spectrum) reported the usual number of cable TV subscriber losses, but also reported significantly fewer broadband subscribers than usual:

"Charter on Friday reported 25% fewer new broadband subscribers than analysts estimated and said the overall number of new customers would fall back to 2018 levels. Comcast, which had earlier cut its subscriber forecast, reported 300,000 new internet customers Thursday, less than half the number added a year ago."

What's the reason for the slowdown? For one thing, the COVID telecommuting boom had artificially been boosting subscriber uptick as people struggled to work and learn from home. That's ending as people return to something vaguely resembling normal school and work life. Charter and Comcast largely blame a slow down in the new home market, leaving them trying to wring more subscribers out of a fairly saturated subscriber base (they often don't want to expand into new, often more rural areas because it's not profitable enough, quickly enough, for Wall Street).

Consumers also struggling during the pandemic aren't spending as much on services, which means downgrades to slower tiers, or cancelling service altogether and going cell phone only:

"Other factors could include a dropoff in lower-paying customers as government assisted broadband funds dry up. “There’s clearly softness in consumer spending,” said Maribel Lopez with Lopez Research. “They are making choices on tiers and downgrading services.”

This is where it gets interesting. With a saturated market and slowing growth, cable giants like Comcast will be forced to find a revenue boost from somewhere else to satisfy the insatiable appetite for quarter over quarter growth. Streaming isn't going quite as they planned (Comcast took a $520 million loss on its streaming service Peacock last quarter) due to intense competition. That means increased pressure to do a lot of the dodgy shit (arbitrary usage caps, overage fees, prioritizing certain services over others) that got them in trouble in the net neutrality wars.

With the FCC effectively crippled courtesy of the Trump administration, and Comcast lobbyists busy trying to scuttle Biden appointments to mire the agency in perpetual gridlock, I wouldn't be shocked to see Comcast and Charter come up with some aggressively idiotic new nickel-and-dime money making scheme in the next year. When a monopoly's growth gets restricted and Wall Street grows impatient for its blood sacrifice, there's almost always one person who winds up paying the price: the consumer. Especially when there's neither competition nor competent regulators capable of reining in the monopoly's worst impulses.

Filed Under: broadband, competition, fcc, growth
Companies: charter, comcast

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.

Filed Under: candy crunch, candy crush, grapes, trademark
Companies: ifg, international fruit genetics, king.com