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.

In IP, Words Are All We Have.

Intellectual Property is strictly a creature of law and language- it exists only in word and in law. (Unless it also exists in ethics and metaphysics…)

Why do I keep writing about language on a blog about IP law and videogames? With most things we talk about in our day-to-day lives, there’s a tangible object that correlates to our discussion. If we argue about who owns a piece of land, a TV, a sandwich- there’s a THING that we can point to and say “THAT is what I’m talking about.” But there isn’t a physical object of “right to publish.” Sometimes there’s a contract, but the contract is only words- which brings us right back to language. The only “thing” we have is a linguistic representation of an intangible and [I argue] abstract idea.  For me, this sets IP law apart from every other type of law. And yet, IP law is most closely related to Property law: a type of law characterized by exactly the opposite features- you can always point to land, heirs, tenants, chattels and everything else in property that isn’t IP.

We don’t speak carefully about technology. We play fast and loose with our words. If I “show” a moving picture, I don’t literally reveal a DVD, videotape, or reel to people. When I listen to a CD, I don’t actually put my ear up to the disk. Rather, we watch the content on the DVD and listen to the content of CD through the use of the appropriate devices. These devices reveal the content to us that is otherwise inaccessible. This sort of language is fine for casual use, but it can create confusion when it is used to analyze more complex issues. More careful language reveals the issues at stake: the content of the media is at issue, not (usually) the physical vessels for that content.

What IS intellectual property? The performance? The idea? The sounds or notes? The pattern or choreography? None of these- it is the right to use and profit from such things. Owning IP is like owning land in that the locus of the ownership is in the right to use and deny others’ use. What is land ownership besides the right to determine who uses the land and in what fashion? Maybe it turns out that IP licensing isn’t so different from land ownership. Although we may say “I own Blackacre” without objection, what I really mean by such a statement is that “I decide who uses Blackacre and how.” Although our law does not recognize that anyone can own “The Ballad of Blackacre,” we do recognize that some entitiy may own the right to decide who uses the song and in what way. In both cases, the claim of ownership is really a claim against the world. If we balk at the abstract nature of IP claims, it may be because we do not appreciate the abstract nature of the claims we make about real and personal property.

Clarity in Communication

http://xkcd.com/1028/ The alt-text (discovered when you hover your cursor over the comic) is particularly relevant.

Clarity is in the final comprehension, as the proof of pudding is in the eating. Clarity is not about being able to be understood, or even about being so clear as to not be misunderstood: it is about actually being understood.

Legal writing is meant to be clear, but it is famous for being confusingly unclear. By being overly specific, general meaning is lost. Legal writing is difficult because it tries to address two audiences: the earnest, non-technical crowd who only wants the general meaning and idea, and the conniving, dastardly, sneaky crowd who looks for any slight ambiguity to exploit for gain.

Our common language utilizes non-specificicty and ambiguity as a sort of social lubricant, allowing conversations to flow along and meaning to be conveyed lightly. When lawyers write even simple things, they do so expecting every possible contest of even the most basic statement.

People ask the fair question: “Why can’t lawyers just write simply so we can understand?” One reason is that understanding is not entirely dependent on the words; a lot of understanding is gleaned from context, situation, and background understanding. The awful writing of lawyers shows what communication would be like if we were robots and not humans. Cultural shorthand allows us to communicate ideas without pinpoint specificity- but we experience confusion when unspoken background assumptions do not overlap quite right. When communication is a product of working together with a common background and a common goal, the language can be imprecise and simple. When communication occurs in anticipation for a battle, with different aims and understandings, the language must be as excruciating and as tortured as the human relations it symbolizes or indicates.

Lewis Carroll’s conversation between Humpty Dumpty and Alice questioned whether it was the same thing to “mean what you say” as to “say what you mean.” I think that common language is when we mean what we say. When we attempt to “say what we mean,” we find we wax verbose, place many qualifiers, modifiers, and all sorts of limitations on every clause and term. It is a very difficult thing to say precisely what we mean—no more and no less. It may be an impossible task to communicate on both the cooperative and competitive levels.

Writing can only have value if it is read and understood.

What should I do with all these books?

 I have amassed a small library of books over the years. I relocate and travel often. Also, I have more books than I have the time to read (especially as the list of books grows longer while my time grows shorter). Quite simply: I just can’t read all of them! Especially because I can hardly read more than 5 pages at a time before I get too involved in the ideas and want to put the book down and go think about what I’ve read.  I have to wonder: Would it even be worth it if I could read all of them? What would I gain from reading them? Do I really need to keep them- won’t we have digitized copies of pretty much all works soon enough? (And they might be ctrl+F searchable!) I want the knowledge in those books, certainly, but I ask: 1) Is that knowledge really worth the effort required to get it?  If it is a work in the subject of technology (comprising a large chunk of my library), books over 5 years old feel outdated and quaint- and possibly no longer correct. 2) If reading is no longer worth the effort, how can I improve my mind and expand my knowledge? What should I read instead? How shall I learn and grow?

My mother (a baby boomer) recently told me that she felt an increasing alienation from books as they move onto digital formats that are foreign to her and difficult for her to use. She feels some sense of growing illiterate- of leaving half a century of enjoying many, many books, into a future where reading is difficult, arduous labor once again. Academics sometimes talk about “digital literacy,” but they often mean being able to comfortably use digital technology to achieve goals. Digital literacy might be taking on a new meaning as we become a world in which merely knowing words and having a background in literature is no longer enough to “read.” What a paradox: for the tools supposed to help us grasp information to alienate us from knowledge!

A Compressed Language for the Digital Age?

Analytic philosophy features some lengthy tomes (Hume, Hobbes, Locke, Kant, Rawls, etc). The idea is to be thorough, laying out the explanation and motivation for the argument, the counter arguments and replies to them. It isn’t just jumping in and asserting some ideas. It’s a matter of carefully constructing a case, building it from the foundation up. Another reason for the length is to show context for the argument: where does it come from (historically), how does it connect to other arguments, why is it important, what does it do, what are its limits and weaknesses, etc? Between 400-500 words seems about the limit for many people for these blog posts— More than that starts to get too in-depth and too convoluted for people to stay interested. The benefit to me, as an author, is that I am compelled to think about the issue and boil it down to its bare, core bullet points. The downside of this for any reader is the lack of context. On some readings of Baudrillard, this might be a good thing, in that there is no “seduction” or “leading away” of anyone from the thing which we are trying to understand. However, if there is anything to the ideas of the structuralists, maybe placing the issue in a web of context and showing its connections to and disconnections from the rest of the world is actually how we come to understand it. But is the web too complex for this to work? Can we trust readers to place in the web themselves, to link and tag and categorize correctly and appropriately? Maybe they’ll be better at it than authors. Maybe they won’t do it at all.

It makes me wonder if the amount of material available and the increased access to it in the 21st century begins to impose a need on changes in language that accommodate a faster transfer of information. As files began to get big, we started “compressing” (or “Zipping”) them during transfer. To compress is to increase the density of a mass by decreasing the volume it takes up, even as the mass stays constant. We compress gasses with various tanks and pumps, and computer files with languages and applications —can we compress ideas with language and thought? Would the compression of ideas require a new grammar, or only a few new words and symbols? We would still need to trust the reader to “unzip” or “decompress” the information once they received it: to tag, categorize, connect, sort, collate, etc. in their own mind. Are we equipped to do this, as readers?