Comments on: Absolutely Scrabulous

By: Save Scrabulous

Save Scrabulous — Fri, 01 Feb 2008 07:24:24 +0000

Save Scrabulous gear–http://www.cafepress.com/scrabulicious

By: A.J. Sutter

A.J. Sutter — Thu, 31 Jan 2008 16:47:59 +0000

A minor point for this philosophical discussion, but relevant if you’re thinking about defenses in a practical way: apparently Hasbro owns the US and Canada rights, Mattel is ROW. So US IP law reasoning might not be very pertinent in regard to Mattel’s claims.

By: john

john — Thu, 31 Jan 2008 03:32:41 +0000

In my view Lanham, pre- or post-1984, isn’t relevant to a ‘genericise’ argument. And I don’t think anyone was arguing that the word “scrabble” had become genericised (say, from Hasbro failing to protect the mark).

(Noted, that the name ‘Scrabulous,’ in addition to multiple uses of the name ‘Scrabble’ within the site — which have since been sanitized — is in clear infringement of the trademark, with a very high likelihood of confusion.)

However, Lanham is trademark law, and in the general case (a game that played exactly like Scrabble(R), but was named something very different) Hasbro would have a very hard time — given competent defense counsel — convincing a court that the size of grid and arrangement of premium squares were anything they had exclusive rights to, since those are purely functional attributes of a game.

The ‘generic’ trademark question properly before us is: Could a given instantiation of the game made popular as “Scrabble(R)” be confused as a Hasbro product? As compared to another (perhaps theoretical, or ideal) instantiation, for which no such confusion exists?

It is impossible to imagine such an ideal that is still the same game, if one includes the arrangement of squares as part of the trade mark (under trade dress or otherwise). And the courts have repeatedly ruled (and not just in the Ninth Circuit) that game rules, methods, and processes escape both trademark and copyright infringement if clearly understood as functional elements.

This is all my opinion after much study. I am not a lawyer.

By: venkat

venkat — Thu, 31 Jan 2008 01:00:20 +0000

I gotta admit this does make one step back after initially reacting that “the Agarwalla’s must pay!” (partially driven out of jealousy that they so easily put together an app that makes 25K a year).

I wonder how copyright/tm varies across countries and how this may affect the dispute. I don’t know the precise rules, but both tm/copyright have limitations w/respect to extraterritorial application. Maybe this is one possible tweak to the dispute.

At the end of the day I would guess there are a slew of emails/communications where the Agarwallas reference Scrabble (the brand). Enough to tip the dispute factually away from them.

By: sls

sls — Wed, 30 Jan 2008 19:13:59 +0000

I think “intuitive infringement” might be something of an oxymoron, give how nuanced copyright law is. (Assuming that infringement is defined purely as a violation of copyright law, and not as some moral norm) It’s clear that there’s copying, and that’s probably where the gut reaction of “it’s infringement” comes from.

Also, the general public’s intuition on copyright issues has been so assaulted by propaganda, I’m not willing to concede that some innate sense of right and wrong is actually guiding popular opinion.

But I don’t think that there’s a particularly strong copyright case–there’s all sorts of functional/expressive problems with that–so it looks like a trademark issue to me.

By: Brian Holland

Brian Holland — Wed, 30 Jan 2008 17:38:01 +0000

I am intrigued by anonymous’s comment. Is there a distinction two be drawn between rights and restrictions that “should” or “might” be more intuitive (perhaps because they regulate at some visceral level — maybe criminal or tort, although I haven’t really thought that out entirely) and those rights and restrictions that “should” or “might” be less intuitive? For instance, anonymous makes a legitimate case for intuitive infringement, but that presupposes a certain understanding of the rights created (or recognized, depending upon your point of view — and that is part of the issue) under intellectual property law. I personally do not find the current regime of intellectual property rights “intuitive” in the least. Those rights are, in my opinion, far too expansive with insufficient regard for the public domain. Thus, my intuitive sense of infringement is different as well.

By: Brian Holland

Brian Holland — Wed, 30 Jan 2008 17:37:52 +0000

By: anon

anon — Wed, 30 Jan 2008 14:07:15 +0000

I don’t mean this as an insult necessarily, but this post is why people hate lawyers! I mean, here we have similarities so strong that even the college students, of all people, who love to play the game are willing to recognize it’s infringing, and we’re still looking for a loophole. I feel like there’s an interesting point to be made here about people’s intuitive sense of the law versus the legal construction of it, but it’s kind of early in the morning to actually do that, so I’m just going to throw that out.

By: James Grimmelmann

James Grimmelmann — Wed, 30 Jan 2008 06:22:48 +0000

The genericide argument is a loser after the 1984 amendments to the Lanham Act, which specifically overrode the ANTI-MONOPOLY case. There, the Ninth Circuit had adopted essentially the argument you give.