How Hasbro Loses At Scrabble (Even If It Wins Its Lawsuit)
BY Michael Lechter
Quick: What 9-letter word can you spell with Y, I, R, G, C, P, O, H, and T?
If you came up with COPYRIGHT, you're either a crack Scrabble player or RJ Software founders Rajat and Jayan Agarwalla, who no doubt have the word much on their minds these days. They are the designers of Scrabulous, the extremely popular Scrabble-like online game that's under attack for alleged copyright infringement by Hasbro, the current rights owner of Scrabble. Since Hasbro's suit, the application has been blocked to Facebook users in the United States and Canada—and they're not happy.
There's no arguing with the obvious fact that Scrabulous bears a striking resemblance both in name and appearance to the classic boardgame. So the odds are pretty good that Hasbro will prevail by showing both a "substantial similarity" from a copyright perspective and a "likelihood of confusion" with respect to sponsorship or affiliation on the trademark.
But my guess is that Hasbro will end up the loser of the war for online players even if it wins the suit. In short, the company made a terrible mistake by waiting so long to defend its intellectual property.
Launched in 2005, Scrabulous spent more than two years building its brand and market awareness before Hasbro filed its copyright suit. Scrabulous' popularity was magnified when it launched an application on Facebook. Until it was shut down by the law suit, the game had an estimated 23 million players worldwide.
Hasbro has created its own official Facebook Scrabble game, but users are complaining it isn't as good as Scrabulous. Meanwhile, RJ Softwares launched a game called Wordscraper on Facebook in response to the suit. Though obviously meant to appeal to Scrabulous players, Wordscraper uses different shaped letter tiles--circles instead of squares--rearranged "extra point" tiles and a different board design, all of which makes it distinct from Scrabble. Whether these distinctions are adequate to avoid a potential infringement claim remains to be seen. But given the resentment over Hasbro's suit, many former Scrabulous players will no doubt be willing to migrate to Wordscraper.
The lesson to be learned for your business: Your intellectual-property rights mean nothing if they're not enforced. If you don't protect your position in the marketplace, prepare for someone else to do a better job of spelling out your business.