You have to hand it to Rajat and Jayant Agarwalla, the two East Indian brothers who came up with the Facebook game Scrabulous — the fairly obvious
ripoff… er, tribute to the Hasbro-owned board game Scrabble. After reportedly failing to arrive at an agreement that would see Scrabulous transferred to Hasbro’s control, the game company launched its own official Facebook game and then sued the brothers for trademark infringement. So what did the brothers do? Last night, they launched a very similar game called Wordscraper (Mashable was the first to spot the new game, and posted about it on Twitter).
So what does Hasbro do now? It’s not clear that the new game trespasses on anything legally protected. It doesn’t have a similar name, the board looks different and there are some different rules. Obviously, the concept of spelling out words and earning points is the same, but that’s not the kind of thing that trademark or copyright law is designed to protect. As a patent and trademark lawyer explained to Caroline McCarthy of CNET’s The Social, the idea of a game can’t be legally owned — only the real-world expression of that idea.
As Mike Masnick of Techdirt notes, the thousands of irritated users who saw one of their favourite games suddenly vanish from Facebook aren’t likely to look too kindly on what Hasbro did, regardless of their views (if they even have any) on the propriety of trademark infringement. Thousands of them have already signed up for Wordscraper — even though it hurts Erick Schonfeld’s eyes — and it hasn’t even been available for 24 hours yet (last time I looked, Electronic Arts had about 60,000 for the official Scrabble app, and there’s another game for those outside the U.S. and Canada).
Mike’s argument is that even if Hasbro was legally entitled to sue, which they clearly were, it wasn’t a smart business decision to make, since it really didn’t accomplish much — and may even have alienated some fans of the game. As I noted in my previous post, however, Hasbro reportedly tried to reach a monetary settlement of some kind with the Agarwalla brothers and was unable to. So what other choice did it have? Presumably it could have created the official Scrabble app without suing. But would that have achieved the same thing?