Anticipate This!™ | Patent and Trademark Law Blog

Scrabulous: Not a Triple-Word Score.

Posted in General Commentary, Litigation Commentary by Mike Dockins on January 21, 2008

According to Reuters, Mattel and Hasbro have recently warned Facebook that the online application Scrabulous may be infringing Mattel and Hasbro’s copyright and, presumably, trademark in relation to the popular board game Scrabble®. 

If you have not yet been hooked by the Scrabulous phenomenon, consider yourself lucky. Sources indicate that it can be quite addictive.  Scrabulous has a registered user base of 2.3 million, 600,000 of which play the game daily.  The move to shut down Scrabulous has also prompted a new community on Facebook named “Save Scrabulous”.  The “Save Scrabulous” community has over 12,000 members.

So is there copyright infringement?  Independent creation is a defense to copyright infringement, but only if independent creation is a possibility.  If you were to put enough monkeys with typewriters in a room on Mars, for example, they may independently create Shakespeare and have a valid copyright in the work. 

One test for copyright infringement is access and substantial similarity.  The creators of Scrabulous cannot in good faith claim, however, that they never had access to Scrabble®.  The game of Scrabble® is sold in 121 countries in 29 different languages. One hundred million games have been sold worldwide, and estimations are that Scrabble is found in one out of every three American homes. 

As for substantial similarity, well, we have not played Scrabulous ourselves, so it is impossible to make a first-hand determination.  However, below is a comment from one of the more reasonable Scrabulous fans at “Save Scrabulous”, as reported at this Forbes article:

The copyright infringement is obvious and, in retrospect, the developers of Scrabulous should have done more to create their own spin on it [rather than using the same color schemes and numerical systems and having the rules to Scrabulous game link to the Scrabble Wikipedia page].

You be the judge.  Images of the respective games are reproduced below.

 Scrabulous Image           Scrabble Image

Scrabulous                            Scrabble®

Access?  Check.  Substantial similarity? Check. 

But what about trademark infringement?  In trademark law, two words or phrases do not have to be identical for there to be a trademark infringement.  An infringement may be found wherever there is a likelihood of confusion as to the source, sponsorship, or ownership of the goods (or services).  A likelihood of confusion in this instance appears to be very high.  The goods (the game) are nearly identical in the way they are played as well as how they look.  Further, the marks themselves are very similar, sharing the same first five letters (S-C-R-A-B).

Similar marks?  Check.  Substantially identical goods?  Check.  Trademark infringement seems to be yet another obstacle the Scrabulous makers will have to hurdle.

So what options do Facebook and/or the creators of Scrabulous (JW Edit – 1/25/2008; good comment tekel) have?  The most reasonable recourse may be to consider selling Scrabulous to Mattel/Hasbro, or obtaining a license as soon as possible.  Any comments from our readers?