Scrabbled

I was too busy playing Scrabulous last week to blog about the complaint filed by Hasbro against the creators of Scrabulous, the online word game that happens to share the board layout and rules of play of Scrabble.
Complaint in Hasbro v. RJ Softwares (08cv06567, NYSD filed Jul. 24) for copyright infringement, trademark infringement, trademark dilution and common law unfair competition.

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In addition, Hasbro served Facebook with a DMCA takedown notice.
Facebook forwarded the takedown notice to the Scrabulous developers who prevented access to the application for addicts users in the US and Canada.
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In the NY Times Bits Blog, Brad Stone reports Hasbro Notches Triple-Word Score Against Scrabulous With ‘Lawsuit’: “‘Hasbro has an obligation to act appropriately against infringement of our intellectual properties,’ said Barry Nagler, Hasbro’s general counsel, in a statement. “We view the Scrabulous application as clear and blatant infringement of our Scrabble intellectual property, and we are pursuing this legal action in accordance with the interests of our shareholders, and the integrity of the Scrabble brand.’”
Wendy Seltzer argues that a game like Scrabble is not a sufficiently creative form of expression to be copyrightable. Scrabbling for Legal Rationalism: No Copyright for Games: “So the ‘methods of operation’ — the rules of the game, should be uncopyrightable no matter how intricate. Their particular expression in an elegantly written manual may be protected, but another is free to extract the underlying ideas and rewrite the manual to describe an identically played game.”
At Madisonian, Frank Pasquale also wonders about whether copyright protects the Scrabble board, but that the similarity between the marks seems like to lead to a likelihood of confusion, Absolutely Scrabulous: “But that still leaves the elephant in the room%u2013the substantial similarity between Scrabulous and the mark Scrabble. But in keeping with the theme of this post (of pushing defenses here to the breaking point)%u2013could Scrabble be generic? I know that%u2019s doubtful, but I also have a sense that there is no other way that people refer to the %u201Cgame that involves seven lettered tiles played for points on a board that includes double and triple letter and word scores.%u201D On the other hand, if you asked the %u201Cman on the street%u201D if Scrabble is the name of a word game or the name of trademark for a company%u2019s (version of a) word game, it seems like the latter interpretation is at least as likely as the former for someone with an elementary knowledge of the law.”
More than anything in the short term, the takedown will be the best promotion for Hasbro to drive traffic to the licensed Scrabble application (which, surprisingly, is dreadfully slow and ugly compared with the simple and relatively elegant Scrabulous application.)