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.
So the hammer has finally come down on Scrabulous, the Facebook game developed by two Indian brothers that become a viral hit only to be sued by Hasbro, which owns the licensing rights to the Scrabble board game. Trying to play the game now brings up an error message saying it is unavailable to U.S. or Canadian residents. Electronic Arts, meanwhile — which licenses the rights from Hasbro — has launched its own official version of the game on Facebook, although whether people will make the switch to the new version or not remains to be seen.
I’ve been kind of fascinated by this case ever since it first appeared. Not just because Scrabulous became so popular so quickly, but also because it seemed to boost interest in the actual board game itself, with stories of people addicted to the Facebook game going out and buying real-world copies for the first time. My first reaction was to cheer for Scrabulous, and wonder why Hasbro or EA didn’t just buy the app from the Agarwalla brothers and take advantage of all the free marketing their game was getting through Facebook. Mashable makes the same point here.
There are two ways you can look at a popular Facebook app like Scrabulous, which is clearly an online version of Scrabble, one of the most popular board games of all time (at least for anyone with a cottage where it sometimes rains and there is no television). One is to see it as a rip-off of a company’s trademarked property — which is clearly the way that Hasbro and Mattel see it, since they have reportedly sent legal letters to Facebook asking them to remove the app.
The other way to see to see it, of course, is as a tribute to the popularity of Scrabble, and a kind of viral marketing for the actual game. There are dozens of (admittedly anecdotal) stories of people going out and buying Scrabble games to continue their online addiction offline. How many of those people would have bought a Scrabble game before Scrabulous came along? A tiny number, at best. So why not just buy the app from the developers for a couple of hundred grand and call it a day?
From a legal perspective, Hasbro and Mattel are no doubt totally within their rights to have the app removed, or to sue, or do whatever they wish to protect their trademark. But from a marketing perspective I think they are missing the point. It reminds me of Coca-Cola’s initial reaction to the Eepybird video with the Coke and the Mentos — they said they were considering legal action, because “that’s not how we want consumers to interact with our brand.” Morons.
Eventually someone at Coca-Cola saw the light, thank God, and realized that how people interact with your brand is pretty much up to them, not you. If you’re smart, you will be glad they are interacting with it at all, and you will find a way to capitalize on it. I think another way to look at Scrabulous is as the online version of a tribute band, or like the fansites that specialize in fiction based on Star Trek or Star Wars — some companies see that as trademark infringement, others see it as an opportunity.