Oh no! Scrabulous has been taken down from Facebook at the request of the Agarwalla brothers who can apparently see the writing on the wall and might be hoping to mitigate their damages. (The battle between Scrabble copyright owners Hasbro and the creators of Scrabulous started about a year ago when it was first launched on Facebook.) According to the ProJo the Agarwallas have blocked the game in the United States and Canada; the brothers state that they will continue to pursue their legal defense. Mattel owns the overseas rights to Scrabble, and has launched its own online version. But people playing on the Hasbro version (at Club Pogo*) can’t play with their Mattel counterparts and the whole thing is a big mess. Hasbro’s case against Scrabulous is as strong as these things ever get, but will they win the battle only to lose the war? Have they forever alienated the roughly 3 million fanatically loyal players registered with Scrabulous? Stay tuned.
*Club Pogo seems to have some kinks to work out. I clicked on Scrabble and the screen gave me two options — ‘the United States and Canada’ or ‘other countries’. Curious about what this last could possibly mean I clicked on it to find a screen that said ‘Sorry’ etc. But then I couldn’t get out of that and back to the ‘United States’ not back through ‘home’ not no way, not no how. Okay Hasbro, there’s a couple of brothers in India who could probably figure this out for you.
who is the kid with the miserable pout face?
Okay, I will say one more thing. My ‘Nutshell’ (and that is a series of law school books btw) has this to say; “The touchstone of trademark infringement is ‘likelihood of confusion.'” It goes on to list some probative inquiries, for instance, the similarity of the marks with respect to appearance, sound, connotation, and impression. You’ll notice it is ‘similarity’ not your word ‘same’. Also, the strength of the mark. Scrabble has been around a long time all over the world… pretty strong. So could a reasonable person have logged on to Scrabulous and thought it was part of the Scrabble family of products owned by Hasbro? I say yes, and that is confusion. Standards such as ‘similarity of marks’ are tweaked and hammered out in federal courts every day and adjectives used by laymen are terms of art in the law. I know I am in way over my head on this topic already. But my gut goes with Hasbro in this one. Time will tell.
In a nutshell, what I would be trying to get at is that even if Hasbro were to claim trademark infringment, given the different media in which the games are played (primarily played on a physical board vs online), the name scrabulous vs scrabble (mildly derivative, but not the same) and the use of the dictionary (scrabulous uses the sowpods dictionary) makes scrabulous a product unique from scrabble. Again, the gameplaying rules do not fall under copyright law, so there really should be no issue about scrabulous being allowed to operate freely.
Beth–how do you think I paid for college?
Thanks for the interesting contributions from you and Choyon, though. For a non-lawyer, you’re pretty talented at converting legal jargon into English for the masses.
Okay, here I go (I am not an intellectual property attorney. Do not act or rely on the following statements.). My response to Wendy Seltzer’s argument; and thanks to Choyon for making my head hurt!
I have always felt that this was going to be a trademark case, hinging on the potential for ‘customer confusion’ in that it appeared to be a Hasbro product. WS keeps referring to the function of the board, but it’s the look of the board that screams Scrabble. People would recognize that design even with no text on it. She compares this to the ‘method of function’ issue in Lotus v. Borland saying that, like Lotus’ functional command hierarchy menus, the premium squares on the scrabble board “indicate” scoring. Only a non-Scrabble player could view it that way. The premium squares don’t “indicate” scoring, they control the whole strategy of the game — they are the game. And comparing the game board to the utterly generic blank accounting book in Baker v. Selden (a case from the late 1800’s) doesn’t pass the laugh test. The Scrabble case might be more comparable to Dunkin Donuts successfully protecting its ‘pink’ from use by another coffee house.
She also cites the exclusion of copyright protection in the US statute for games etc., but that only means that it won’t be covered under copyright because it is a trademark issue. That language does not mean, go ahead everybody do what you want, it just means this isn’t where game owners are going to find protection for their product.
The reason Scrabulous didn’t pull the game down when they first heard from Scrabble isn’t because the legal claim lacked merit, but the opening salvos were only letters stating “Houston we have a problem” but also “There’s big money on the table, let’s not be hasty and blow it.”. And I think maybe both sides were unsure of how to proceed. Not all of Hasbro’s decisions were legal ones.
And Annie, nice song. But as to sitting staring at the monitor at 3AM… I mean, have you even tried porn?!
The topic has spawned my favorite song of the week: “Our Scrabulous Affair” by humorist and social commentary band Jim’s Big Ego. The lyrics:
“That isn’t a word
You could use in conversation
I know you looked it up
It’s allowed but I’m just sayin’
Now my boss won’t discover
Our Scrabulous affair
It’s not really cheating.
And love is just a word
But it won’t help you score more
Not like flirt or touch or switch
Or cunnilingus
Now my wife won’t discover
Our Scrabulous affair
It’s not really cheating.
Quickly, pack wax, zincify, jezebel
Zombify, MobJeX, squeeze
It’s 3 a.m., staring at my empty Facebook.
How will I go on, unless I move to Argentina?
I wish Hasbro hadn’t discovered
Our Scrabulous affair
It’s not really cheating
It’s not really cheating
Only copyright infringement
What’s the big deal?”
You said something about “Hasbro’s case against Scrabulous being as strong as these things ever get.” The thing is that its not that cut and dry. Hasbro’s case is anything but a slam dunk.
There’s actually a lot of grey area surrounding the game.
Read this post: http://wendy.seltzer.org/blog/archives/2008/04/08/scrabbling-for-legal-rationalism-no-copyright-for-games.html
Because of the nature of the scrabble board game it explains why scrabble is going to have a hard time proving that scrabulous is infringing on its copyright. I don’t think it would be a bad bet to pull for scrabulous here.