Not so Scrabulous

Originally posted 2008-01-16 18:35:58. Republished by Blog Post Promoter

CNET News / Reuters:

The makers of Scrabble have asked Facebook to remove a popular online version of the word game, Scrabulous, which they say infringes their copyright.

The U.S. and Canada rights to Scrabble are owned by Hasbro, the world’s second-largest toy and game company, while the biggest, Mattel, has rights to the game in the rest of the world.

Not surprising. I certainly had assumed there was a licensing agreement or something similar in place. Yes, I was likely to be confused.

UPDATE: David Lat adds:

If you’ve been finding your own productivity impaired by Scrabulous, however, you may not need to give up the application. It may be taken out of your hands, over your protest.

Can’t say as I’ve ever played it. But I’m not half the Facebook fiend Lat is.

UPPERDATE: More detail on the story, which makes it clear this is not merely a copyright issue — as you can tell from the text above, I was thinking trademark all along — here. The copyright, I assume, is in the board setup itself. And a good analysis here.

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Author:Ron Coleman

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8 Responses to “Not so Scrabulous”

  1. January 18, 2008 at 5:19 pm #

    What exactly is being infringed, here? “Scrabulous” != “Scrabble” so they aren’t using any Hasbro registered marks. The letter/number tile design? Is that actually something you can copyright? Who holds the copyright for the traditional dotted die? That guy must be a gazillionaire by now!

    Seriously, there’s no infringement going on here and Hasbro is going to win simply because Jayent (the guy who created Scrabulous) doesn’t have the cash to defend himself.

    The American legal system is so broken–someone who is innocent can be guilty if they’re poor, and rich bullies can “win.” There is no justice here.

  2. January 19, 2008 at 11:25 pm #

    Dossy, in trademark law two words or phrases, etc., do not have to be identical for their to be a trademark infringement. An infringement may be found wherever there is a LIKELIHOOD OF CONFUSION as to source, sponsorship or association. I think in this case there is a pretty high likelihood of that, and my guess (it’s only a guess) is that most people familiar with this area of law would agree.

  3. January 20, 2008 at 9:23 am #

    So, the issue isn’t the fact the Facebook game “Scrabulous” is similar in rules and tiles as the Hasbro game “Scrabble”, but that the word “Scrabulous” might (might!) be confused with the Hasbro trademarked “Scrabble”?

    As you said, I thought the issue was the _likelihood_ of confusion, not the _possibility_ of confusion.

    So, Scrabulous could continue to exist if they changed their name to, say, “Tile Words”?

  4. January 20, 2008 at 12:21 pm #

    No, there appear to be both trademark and copyright issues, Dossy. The question of “how likely is likely” is one that ultimately a jury has to decide, yes. Everyone has an opinion, but mine is that demonstrating LIKELIHOOD OF CONFUSION between a game that plays exactly like Scrabble, called Scrabulous, and Scrabble itself — well, it’s the side of the argument I’d rather take, let’s put it that way.

    Then there’s the game itself. They seem to use a Scrabble board. Well, that’s protected by copyright, and probably will be for quite a while longer, so I guess changing the title of the game would not help.

  5. January 20, 2008 at 3:34 pm #

    Scrabulous uses a board with an identical layout to the Scrabble board, but as far as I can tell, there’s NO text written on the spaces.

    Is it possible to copyright a color pattern on a grid? The text on the bonus squares I can possibly see being copyrightable, but a color pattern on a grid? Really?

    I doubt the creators of Scrabulous were foolish enough to copy the Scrabble rules and republish them as part of the Scrabulous game–surely, that would be infringing. However, everyone “knows” how to play, so they could just not publish any rules to accompany the Scrabulous game. Where would the infringement be, then?

    I do hope that Facebook nor the Agarwalla brothers back down from Hasbro’s bullying and this finally get tested in a court of law, once and for all. After all, it IS the future.

  6. August 21, 2008 at 2:41 pm #

    Yes, it is true that if there is “likelihood of confusion,” which only the jury can find (or the judge in a bench trial), Scrabulous is infringing. In this case, the promoters of Scrabulous were more than likely aware of the Scrabble trademark, and they have decided to go for it, or simly did not think their mark is infringing. Lesson to be learn: always perform an extensive trademark search and take a good look at the search results before you go ahead an invest money and time in a trademark.

Trackbacks/Pingbacks

  1. Nolo’s Patent, Copyright, and Trademark Blog » Blog Archive » Do Not Pass Go: How to create non-infringing board game - January 24, 2008

    [...] Don’t use a name that’s similar to a popular game. Stepping on the trademark of a game (particularly a famous one) is a sure fire way to get dragged into court (although occasionally the results are suprising). [...]

  2. LIKELIHOOD OF CONFUSION® » Blog Archive » Scrabulous update? - March 12, 2008

    [...] We wrote about the attempt by the owners of the SCRABBLE trademark to shut down Scrabulous a while ago.  So what ever happened with all that? [...]

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