A Legal Blog by Aaron | Sanders, PLLC

Update on Candyswipe Saga: A Practical Look Back

Good Planning > Poor Planning, but Luck Sometimes Trumps All 

On March 10, I published a blog post about the emotional legal dispute between the small publisher of Candyswipe, called Runsome Apps, and the much larger international publisher of Candy Crush Saga, King.com Ltd.. In that dispute, Runsome Apps actually fired the first shot, opposing King.com’s application to register CANDY CRUSH SAGA in the United States. When King.com located and purchased the rights to an older, very obscure game called “Candy Crusher,” it put the Candyswipe publisher in a bad spot. My advice to the Candyswipe publisher was to drop the opposition before King.com was permitted to bring a counterclaim to cancel the CANDYSWIPE registration.

As it happened, the very next day, the parties agreed to suspend proceedings pending settlement, and the case was withdrawn on April 25 (and formally dismissed with prejudice April 29). According to the Candyswipe webpage, it was all some horrible misunderstanding (?): “I have learned that they picked the CANDY CRUSH name before I released my game and that they were never trying to take my game away.” In the settlement, neither party will have to do anything, i.e., the dispute was a wash: “Both our games can continue…

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The Color Run v Photographer Part 3—Failing at Risk-Reward Analysis

Part 3 of 3: When Doing Nothing Is the Best Choice

This is the last in a series of posts about how the popular quasi-charitable event organizer, The Color Run, got into such a serious scrape with a freelance photographer because of a too-casual copyright license. As I showed last time, The Color Run was lucky that the photographer hadn’t timely registered the copyrights in the photographs, or else his absurd $100,000 demand wouldn’t have been so absurd.

This post is about The Color Run’s reaction to the said absurd demand. Recall that The Color Run reacted by suing the photographer, Maxwell Jackson, for (1) a declaration that it had a license to use the photographs, and (2) trademark infringement. In my introductory post, I suggested that the claim for declaratory judgment was defensible but the trademark claim was a “dick move.”

I Do Declare!

While seeking a declaration of non-infringement was defensible in the face of a $100,000 demand, it wasn’t necessarily the correct or wisest course of action. The other course of action was to do nothing and see if Jackson really would sue. Sometimes, in law, doing nothing is the best course of action. Yeah, I know, bias for action…

In 1928, the Color Run was a lot less colorful.

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Secondary Liability and eCommerce Licensing Strategies

Or, How to Keep Your Customers’ Bad Acts from Getting on You

Eighth Annual eCommerce Best Practices Conference, Part 2
Stanford University, June 24, 2011

The first panel was probably my favorite, in part because the topic was so timely.  Secondary liability in intellectual-property law occurs when you yourself don’t infringe a patent, copyright or trademark, but you knowingly cause or induce to do so, or contribute materially to the infringement.

It’s a very big deal in eCommerce because typically the primary infringers are a multitude of individual consumers, who are hard to track down and identify, don’t have a lot of money, and can’t be sued very efficiently (not that some folks haven’t tried….).  It would be preferable if you could just sue the alleged source of the problem:  perhaps the owner of the website that is hosting the infringing content, or the maker of the software the enables the mass infringement, etc.  File-sharing is the classic example of this.

The law, naturally, is reluctant to cast so wide a net.  If we held the manufacturer of a useful device liable for its infringing misuse, we would all be the poorer.  If we destroyed every website that hosted potentially infringing…

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