Scrabulous is Toast: Did Hasbro Really Have a Case?

Anyone logging into the super popular Scrabulous board game application on Facebook today from the US or Canada was greeted by this message, “Scrabulous is disabled for US and Canadian users until further notice.” The demise of Scrabulous, one of Facebook’s most popular applications, was a long time coming and pretty well expected by anyone following the story.

Last week, Hasbro’s general counsel, Barry Nagler, said that Scrabulous was a “clear and blatant infringement of [Hasrbo’s] Scrabble intellectual property” and suing the application’s creators was an effort to protect “the integrity of the Scrabble brand.” However, it’s becoming a bit had to sort out just what intellectual property Hasbro owns regarding Scrabble.

According to the US Copyright Office games are not protected by copyright law:

The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it.

Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.

Some material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game, or the pictorial matter appearing on the gameboard or container, may be registrable.

So strictly speaking of copyright, the only thing Hasbro can lay claim to in the US are the rules, the box art, and the visual cues on the game board and game pieces. Scrabulous doesn’t appear to infringe on any of that — they don’t print any rules (they link to a copy on Wikipedia), nor have they reproduced the Scrabble logo or any box or board art. Their game board is very similar, but methods can’t be copyrighted.

They can be patented, though. However, patents generally only last 20 years — so any patents on Scrabble, which was sold starting in 1948 — have likely long since expired. Which means that only leaves trademark.

The name Scrabble is a trademark of Hasbro in the US and Canada (and Mattel in the rest of the world). Colors and product design can also be trademarked. Scrabulous most definitely infringes on the Scrabble trademark — it is close enough that there is a likelihood of confusion between the two products. The colors and design of the game board could also be trademarked, which Scrabulous also would have infringed upon. But could a name change and slight redesign of the game board (tile size, fonts, colors, text placement) have been enough to save Scrabulous?

That’s what Bogglific — a Boggle clone also served a take down noticed by Hasbro this past winter — did and they’re still around. Blogglific is now called Prolific, and made very slight changes to scoring (the game’s creator added a bonus tile and changed how much found words are worth). The game, though, is essentially the same as Boggle in both look and game play. Scrabulous could try the same thing and skirt any lawsuits that Hasbro tries to throw at them.

Caveat: I am not a lawyer, so if I’ve gotten any of this wrong, please tell me why in the comments! (For example, though copyright law doesn’t protect games, the Copyright Office page does talk about copyright’s inability to stop others from creating games based on “similar principles,” whereas Scrabulous was a direct copy of Scrabble. That goes beyond “similar” and perhaps that matters — does anyone know?)