This afternoon King – owners of Candy Crush Saga and an ever-increasing percentage of the dictionary – issued a statement defending their actions regarding the news that they had filed an opposition to Stoic’s attempts to trademark “The Banner Saga”. A defence that seems odd in the face of what’s actually happening. Especially as they’re arguably attempting to assert a trademark they don’t actually have. Appearing to believe they are the only company allowed to register games with “saga” in the title, King has exercised this by preventing other studios’ efforts to protect their unique game names with their own trademarks.

Yet in King’s statement (below), they make it clear that they don’t believe that Stoic is trying to profit from a similar name, and say they do not wish to prevent Stoic from using the name. A claim that seems, well, rather peculiar given the circumstances, and their appearing to say something quite different in their Opposition. It’s something Stoic have now told RPS they’re not too pleased about either, stating, “We won’t make a Viking saga without the word Saga, and we don’t appreciate anyone telling us we can’t.”

There’s a lot of misinformation and trumpeted claims being bandied around about the need to “defend trademarks”. It’s certainly true that if a company does not make an appropriate effort to assert their ownership of a product name, it can eventually be considered to have entered the public domain. However, this arguably does not directly translate to stamping on every small studio whose game name bares a passing resemblance to your own. And it certainly doesn’t mean attempting to assert rights to a single word for which the trademark has not been granted.

King have certainly attempted to trademark “saga”. But they haven’t succeeded in doing so. The mark is currently in the status “SUSPENDED”. You can look through the history of their attempts to claim ownership of the word since 29th November 2011, here. There’s a whole bundle of legalese in there, but the short of it is, they don’t have it. They do have marks for specific game titles like Candy Crush Saga, Bubble Witch Saga, etc, and with repeated use of “saga” in their trademarks, they appear to be arguing that other games using the word “saga” are therefore confused with their own. Although presumably this doesn’t include the 2008 game SAGA by BlueOrb Studios, or all twelve games in Square Enix’s ongoing SaGa universe, Westwood’s 1988 RPG Mars Saga, the ongoing wonderful Hoshi Saga games by Nekogames, Atlus’s Metal Saga or Divinity II: The Dragon Knight Saga, Namco’s Sigma Star Saga or Culdcept Saga, December’s Vita release Sorcery Saga, LucasArt’s LEGO Star Wars: The Complete Saga, Sony’s 2012 God Of War Saga collection, and on and on and on for hundreds of games, many falling into the time period claimed by King.

And yet, as we reported this morning, Stoic’s application to trademark their game, “The Banner Saga”, has been blocked by King. And at length. King’s response to press enquiries as to why was as follows:

“King has not and is not trying to stop Banner Saga from using its name. We do not have any concerns that Banner Saga is trying build on our brand or our content. However, like any prudent company, we need to take all appropriate steps to protect our IP, both now and in the future. In this case, that means preserving our ability to enforce our rights in cases where other developers may try to use the Saga mark in a way which infringes our IP rights and causes player confusion. If we had not opposed Banner Saga’s trade mark application, it would be much easier for real copy cats to argue that their use of “Saga” was legitimate. This is an important issue for King because we already have a series of games where “Saga” is key to the brand which our players associate with a King game; Candy Crush Saga, Bubble Witch Saga, Pet Rescue Saga, Farm Heroes Saga and so on. All of these titles have already faced substantive trademark and copyright issues with clones.”

Here’s the thing, though. When you look at the Notice of Opposition (pdf) from King to Stoic’s filing for their trademark, it really doesn’t seem to match up to these words. It states,

“Applicant’s THE BANNER SAGA mark is confusingly and deceptively similar to Opposer’s previously used SAGA Marks.”

Claiming the naming of Stoic’s game is “deceptive” is really quite another thing from their statement. And Stoic themselves aren’t buying it either. In a statement given to us this evening, they say,

“Two years ago, the three of us at Stoic set out to make an epic viking game: The Banner Saga. We did, and people loved it, so we’re making another one. We won’t make a viking saga without the word Saga, and we don’t appreciate anyone telling us we can’t. King.com claims they’re not attempting to prevent us from using The Banner Saga, and yet their legal opposition to our trademark filing remains. We’re humbled by the outpouring of support and honored to have others stand with us for the right to their own Saga. We just want to make great games.”

And it’s important to note that King’s intervention on The Banner Saga isn’t a one-off recent thing. They’ve been drawing this out, in efforts to prevent Stoic registering their game’s name. A name they applied for, say Stoic, before King attempted their own registration of “saga” alone.

“We currently have a trademark filed for “The Banner Saga”, which we submitted before King.com filed for the word “Saga”. They’ve blocked our trademark and extended the deadline for the opposition twice so that we are unable to have the rights to the name.”

So what are the consequences of this for Stoic? Where does it leave them?

King’s public response is “King hasn’t and isn’t trying to stop Banner Saga from using its name. We don’t have any concerns that Banner Saga is trying build on our brand or our content and so we’re not asking them to change their name. Rather, we have asked them not to trademark it as their IP.” Essentially, we are not allowed to own the name “The Banner Saga” for our game about a viking epic, because King.com claims rights to the noun “Saga”, which means “a viking epic”, which they would retain forever more in the realm of games.

Here’s the thing: the tragedy is, who’s right or wrong is entirely irrelevant, because this will only ever come down to money. Stoic haven’t told us what they plan to do next, but my guess is it’s not going to be to make a legal challenge. Why? Because it would cost a fortune, and they’re a tiny independent studio that wants to be able to continue making games. King have a portfolio of games that makes literally millions of dollars every day. If Stoic lawyered up, King could (and I stress “could” – we’ve no evidence that they would) bleed them dry of every last cent before anything got anywhere, and it wouldn’t be a blip in King’s accounts.

Bearing this in mind, I contacted King to ask them for some more specifics over their earlier statement. I asked about the seeming contradiction between their statement, and the wording of their Notice Of Opposition, and how they believed preventing Stoic from registering the game’s name wasn’t their stopping Stoic from using the name. (By preventing Stoic’s ability to trademark “The Banner Saga”, King are of course preventing Stoic from having any of the rights and abilities to protect themselves against clones and tricksters attempting to ride their own successes, leaving them exposed to the very issues King believes are so dangerous.) I also asked whether King recognised that their wealth and scale made it essentially impossible for small, independent studios to defend themselves against their actions, and finished by asking whether anyone at King has considered whether these actions are actually necessary? Since copyright can potentially protect them against the cloning they so frequently cite, while trademarks obviously can’t do anything about that at all, do they really need to so aggressively assert their marks, whether owned or imagined, against small indies?

King’s reply? They sent me the statement I was asking questions about, and quoting from.

When I mentioned that this didn’t move us any farther on, I was told,

“This is the official response on this issue. Thank you.”

I’ve asked for an interview with someone at King, based on a desire to put these questions to a person, and have been told that they’ll “see what we can do”. I genuinely hope they do, as I think it would be worthwhile to hear from their management in a frank exchange.

In the meantime, those are the statements from both sides of this Goliath Vs David dispute. A sad story, all round. Stoic can continue to call their game “The Banner Saga”, and for the moment King are saying they won’t pursue it further. They could of course change their minds. But it means Stoic can’t own the trademark for “The Banner Saga”, and as such are prevented from being able to protect their own unique brand. You can let King know how you feel about this situation here.