Michael Madison, Madisonian, has a thoughtful look on the Scrabulous and the online reaction, The Stakes of Scrabulous, “Still, on balance, I think that Hasbro deserves a win if the case were litigated to judgment; the name ‘Scrabulous’ would likely be found to be confusingly derivative of ‘Scrabble,’ and the boards do resemble one another, though they are hardly identical. Still, if the producers of Scrabulous changed the name to ‘CrosswordMania’ and changed the color scheme of the Board, then they would be on safer ground. Not to say safe ground altogether, but safer. Hasbro’s IP rights don’t extend to the idea of online crossword games.”
In its complaint against the Scrabulous developers, Hasbro describes the Scrabble board:
19. The SCRABBLE® playing board has bonus squares that give the player who puts a word on them double or triple letter scores and double or triple word scores. The square are colored, marked, and arranged as shown in Exhibit 1.
A. The center square is rose colored with a black star and the first player to take his or his turn receives a score that is double the value of the tiles.
B. The 4 corner squares and the 4 squares that are mid-way along each side (that is, that are 7 squares from the corners) are deep red in color and are labeled and award the player a “triple word score.” There are 8 total “triple word score” squares.
C. Starting with the tile diagonally closer to the middle of the board for each corner “triple word score” square, the next four squares diagonally toward the center of the board are rose in color and are labeled “double word score.” There are 16 total “double word score” squares.
D. “Triple letter score” squares are dark blue and “double letter score” squares are light blue. They form an “X” pattern through the center of the board and pyramid shapes off the sides of the board with the dark blue “triple letter score” squares forming the outer points of the “X” and the second level of the pyramids. There are 12 dark blue “triple letter score” squares and 24 light blue “double letter score” squares.
Here is a Scrabble game:
This is a Scrabulous game:
Here is what the licensed version of Scrabble on Facebook looks like. Note that the colored squares are different colors than the board game. What does this mean as far as the distinctiveness of the Scrabble trade dress?
What about a game that shares the word list and tile distribution and number of places on the board, but has a different look and places the bonus squares in different locations on the board? What if this game is configurable by the user and gives the game players the option to set it up like a Scrabble board but doesn’t offer the Scrabble setup as a preset?
That’s what the creators of Scrabulous have done with their new game, WordScraper. Is there any likelihood of confusion here? Copying?