July 29, 2008 was a day of mourning for half a million procrastinators around the world. It was the day Scrabulous, a notoriously popular application on Facebook, was removed from the networking site. The withdrawal was prompted by a lawsuit launched by Hasbro, the US copyright owners of Scrabble. Hasbro cited Scrabulous’ developers, Jayant and Rajat Agarwalla, for copyright and trademark infringement. It is not difficult to see why – Scrabulous not only shared a suspiciously similar name to the classic board game, but also blatantly ripped off Scrabble’s board appearance and rules.
Although copyrights generally do not extend to board games, the uncanny similarity between the two versions gives Hasbro basis for their infringement claim. However, the Agarwalla brothers may have an argument in transformative use. In Campbell v. Acuff Rose Music Inc., 510 U.S. 569 (1994), the Court found that a transformative work, which adds something new with a further purpose or different character, can be non-infringing. It can be argued that Scrabulous served a further purpose by connecting distant friends and family in a way that traditional Scrabble cannot. Furthermore, the ability to pause and start the game anytime is a convenience that the classic version lacks. If the brothers can convince the Court that these new features are enough, they may be able to sidestep the infringement.
The claim for trademark infringement, however, is much more solid for Hasbro. One factor to consider in determining infringement is the visual and auditory similarity between the two marks.[1] “Scrabulous,” when spoken, bears a great resemblance to “Scrabble.” Moreover, Scrabble’s board design was registered as a trademark by Hasbro, which means that Scrabulous’ graphic imitation is also likely an infringement.
Regardless of whether the suit succeeds, Hasbro may have bigger worries up ahead. Two days after the disappearance of Scrabulous, the Agarwalla brothers introduced a new application named Wordscraper. Wordscraper allows users to create their own board and rules, so players can easily replicate Scrabble and continue playing their own version of “Scrabulous”. The trick here is that Wordscraper itself has a redesigned board and different playing options. Since copyrights protect the “expression of an idea” and not the ideal itself, this revamped version will likely escape legal implications. By renaming the game and carefully avoiding any Scrabble-like language and appearance, the brothers also dodged the trademark issue. Like it or not, Wordscraper is here to stay. To add insult to injury, the general public response to Hasbro’s action is less than favourable. Boycotts of Hasbro’s games and a “Save Scrabulous” Facebook group are just some of the efforts initiated by Scrabulous devotees.
To minimize the negative impacts of its move in the long run, Hasbro needs to regain its fan base. It can start by fixing the glitches in its own Facebook Scrabble’s to up their measly 1.3-star rating. While it was unfair for the Agarwalla brothers to reap gains from Scrabulous, Hasbro should look ahead and ensure that Wordscraper does not become sanctuary-of-choice for Scrabulous refugees.
[1] AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979).
