The Bitter and Sweet Saga of Trademarks

I am not a lawyer and this is not legal advice. (If my blog was more legally-themed, I might have given it this title.)

TL;DR/WR: Trademark law is more complex than the angry mob imagines. Candy Crush can only get limited protection (if any), but there are reasons to protect the name of your product. Trademark law isn’t “broken” just because someone may have tried too hard.

I was ready to give up on ever blogging about law and videogames again. I thought there might opportunities for broader technology-and-law issues, but I felt that my posts on videogames and law were inorganic, forced, unclear, and boring.

     Then, the makers of “Candy Crush Saga” decided to file for a federal trademark registration. And lo, the analysis by the critics and journalists was poor. Not that I blame them- but I’m happy to write about something I’ve actually studied and grasped and is based on existing law. Most emerging videogame law issues are just massive question marks with no prior cases or statutes to guide an analysis. Trademark law still has its wrinkles and questions, but it has a lot of established material to consider.

     THE ISSUE, as I understand it, is that developer King has decided that its product “Candy Crush Saga” is valuable enough to protect as a trademark. Accordingly, it has filed for a federal trademark registration (currently pending and open to comment) and has opposed the trademark registration of “Banner Saga” by developers of the recent release “Banner Saga” for use of the word “Saga” in a videogame title on the basis of likely consumer confusion.

     Few people in the games journalism world seem pleased about any of this. Leading the angry pack, as always, is a profanity-laced rant by Jim Sterling, with Penny Arcade in strong agreement. Kotaku doesn’t like it, and neither does Joystiq  or Rock, Paper, Shotgun. Lots of gamer resources are taking note of the trademark dispute. Some have looked at a broader scope than others, but I have not seen any serious measure of support for the protection of the intellectual property of a product raking in approximately one million dollars per day in revenue. After reading a few emotionally charged reports, I am not so sure people fully grasp what trademark law is or why we have it.

      There are lots of interesting parts of trademark law, but the role of language is one of my favorites. The Penny Arcade comic hits at what I love about Trademark issues- they are wrapped up in language, and I love philosophy of language and linguistics. (I love copyright issues because of their relationship with metaphysics, but that’s for another day.) One of the tangles trademark law must face is to avoid allowing words to become property in a way that gets in the way of competition (or, more jokingly, everyday speech). But, as with other IP areas, trademark law is about more than words. It is about the effort that has gone into making an abstract into something valuable. Ten years ago, how many t-shirts could you sell with the words and logo of what we now know as the Candy Crush Saga logo? Maybe a few to some hipsters who treasure the obscurity? Would you rather own a store selling Candy Crush Saga merchandise today or try to sell the same merchandise 10 years ago? Trademarks have little market value until they are known. No one knows a trademark until a lot of work has gone into marketing, branding, and making a product that people like and care about.

     THE ANALYSIS is straightforward, once trademark law is rightly understood. All property law is an effort to sort out competing claims about ownership. While the subject of intellectual property law can’t be physically touched like the subjects of personal property or real estate can, it is still rooted in some Lockean  notion of “I worked hard for this and it isn’t fair for you to just take it for yourself.” Trademark law can be understood in this way: “A company works very hard to make the public associate its mark with its quality product. No one else is entitled to reach out and benefit from that effort for their own gain.” Trademark law allows a company like King to to prevent other companies from using the goodwill built up by King to promote other company’s products. (What if Coca-Cola tricked you into buying a Coke when you thought you were getting a Pepsi, or vice-versa?) Many of the journalists have pointed out that no one is going to confuse Candy Crush for Banner Saga, and consumer confusion is at the core of trademark law. If the court (or trademark examiner) finds that there is no risk of consumer confusion, King’s complaint will almost certainly be thrown out. But the fact that King can bring this kind of complaint does not mean trademark law is entirely broken or obsolete. There are other factors at play as well, such as whether “Candy Crush Saga” is a suggestive mark or even a descriptive mark (which is a very weak kind of mark, compared with fanciful or arbitrary trademarks, which are prone to enjoying easier protection). So the tension in this case is understood this way: King has a valuable product they want to protect according to their right, but protecting their product may clash with the efforts of others to promote their products. (And I think that describes at least a third of trademark law.)

     We notice the law most when it doesn’t work the way we want or expect. When a jagged corner of the law fails to match our intuitive understanding of justice and fairness, we can become disturbed that our system is inappropriate or inadequate- and maybe we have noticed a particular part of the system that is exactly that. But the law is always an effort to balance the multitude of possible competing claims that might be brought into a legal contest. We should always keep in mind how a solution to one problem will affect other parts of the law. Even writing this makes me feel that trademark law can be a bit like a blanket that doesn’t quite cover you right: when you pull it over your toes, your shoulders get cold, so when you pull it up to your shoulders, your toes get cold. That means the blanket is really bad and should be destroyed- it just means we need to figure something out to cover everything we need to cover at the same time.

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EDITORIALIZING:

Maybe if King didn’t just make a knock-off of Pop Cap’s Bejeweled (which was itself preceded by a game called Saint-Tropez, which can probably be traced all the way back to the strategy game “Go”) with a really unimaginative and descriptive name, none of this would even be a problem. But hey- I’m not making a million dollars a day. No one pays that much for understanding language or law.

Deus Ex: Human Revolution. Humanism, Post-Modernism. Lyotard and Turkle.

Deus Ex: Human Revolution (“DX: HR”) presents an old philosophical question in a new way. The dour critic could well argue that there’s nothing new or original about asking “What does it mean to be human?”, but DX:HR adds depth to this question by placing it in a context of realistic social, economic, moral, and political realities. It also presents a specific path to approach this question: How might physical augmentations transform an individual (and a society that uses such augmentations)? For me, the game is about exploring a world in which such augmentations (“Augs”) are possible and prevalent. This is more exciting than a game in which you simply run around playing as a someone with superhuman powers.

One of the other interesting twists on the approach of DX: HR is the way it measures up to other sci-fi approaches to artificial intelligence and robots. These focus on the idea of a “man-in-machine.” Augmentations are a sort of “machine-in-man.” Somehow, this seems more imminent a possibility, and a more deeply personal one. However, in one ending of the game, it is suggested that the augmentations can make people so powerful as to lose their humanity, so maybe there isn’t much difference between the two. The world of DX:HR (and the thought experiments it poses) match well with the work of two authors who have likewise explore the boundary of technological progress and humanity.

Sherry Turkle’s most recent book describes our current condition, on the edge of both recognizing machine life outside ourselves (e.g., robot pets) and inhabiting the world through machines (e.g., cell phones and continual internet connection). Even as we recognize that robots can be “alive enough” to merit our emotional involvement, we can feel disconnected from others despite living an over-connected life. As we are increasingly open to robots and AI as friends and companions, and we expect technology to be more entertaining, useful, and fulfilling,  it seems arguable that people are preparing to accept the kind of technological integration that DX:HR’s Augs offer.

Though he is best known for coining the term “Postmodernism”, Jean-Francois Lyotard wrote an essay asking the question “Can Thought Go On Without A Body?” as part of an inquiry into the advances of inhuman technology (married with capitalism) into all things human. In the context of DX: HR, this question could be reformulated at asking whether the essence of being Human is in the physical body of human beings or in the thought processes we have. For Lyotard, the question is as much a matter of living in a postmodern society as a literal question of science. But whether in the face of advances in biotechnology or in the face of the death of the metanarrative, questions of how to preserve and enhance our humanity seem more important every year.

My own conclusion from the game is that such augmentations have great potential to help humanity, but also have tremendous potential for abuse and misuse of all kinds. Whether it’s a boardroom of shadowy figures, a mad scientist-hacker, or the socio-economic implications of dividing a society further into haves and have-nots, there are many ways such a great achievement in biotechnology could be enormously dangerous and destructive. Turkle’s work indicates that we are moving towards acceptance of such advancements, but fundamental questions asked by the likes of Lyotard remain unanswered.

Dues Ex: Human Revolution isn’t the first exploration of what it means to be human, or even the first approach to that question through the idea of some kind of biotech-augmentation. But it places the question in a context that presses the importance of finding useful, practical, helpful answers to questions about our humanity. What I find exciting is that we are approaching a point in human history when this question achieves new significance. Like so many other questions in philosophy, we are finding ways to stretch and challenge what we considered the limits of physical and metaphysical reality.