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e-Scrabble gets Cease and Desist Order from Hasbro 774

Posted by timothy
from the one-of-my-favorite-sites dept.
Matthew Dull writes "Home-brewed e-Scrabble.com recently received a cease-and-desist order from Hasbro Inc., owners of the famous board game Scrabble. E-scrabble, home to over 100,000 active players, has been hosting up online versions of the game to happily addicted players for over a year now (maybe more), and only now does Hasbro come forth with a lawsuit. The creator of the site, known only as Jared, has posted the letter he received from Hasbro's lawyers. However common it may be, it always seems a tragedy when a big corporation stomps its heavy foot on a fledgling but very successful piece of web software that is close to many people's heart." (It's also the best online Scrabble game I've seen; Hasbro should pay Jared, not sue him.)
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e-Scrabble gets Cease and Desist Order from Hasbro

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  • Copyrightable? (Score:5, Informative)

    by tepples (727027) <tepples@[ ]il.com ['gma' in gap]> on Monday March 21, 2005 @08:56PM (#12007191) Homepage Journal

    I am not a lawyer, but I have followed the similar Tetris [wikipedia.org] issue.

    Change the name from e-scrabble to something else, and the trademark claim is pretty much out the window. True, the rule sheet packaged with the game is copyrighted, but given Copyright Office publication FL108 [copyright.gov], I'm not so positive that copyright applies to the elements of a game itself.

  • by haluness (219661) on Monday March 21, 2005 @08:58PM (#12007220)
    http://www.isc.ro/ [www.isc.ro] is an alternative site. You can't play on the website itself but it has Java clients which you can download and then connect to the isc.ro server.

    It's definitely reduced my sleeping hours!
  • From the article:
    ... association with your commercial activities.

    We also demand that you provide us with information concerning the extent of your uses of any elements of the SCRABBLE game, as well as information regarding the distribution of your electronic Scrabble game to enable us to assess more precisely the extent of the damage done.

    Ummm. He doesn't charge people anything and the "distribution" is limited to people coming to his website. Heck, the site even has a disclaimer at the bottom. Really, is this any different than hosting a big 24/7 get together in some public park where people can come play Scrabble all they want?

  • Re:Wow (Score:1, Informative)

    by Anonymous Coward on Monday March 21, 2005 @09:07PM (#12007301)
    they have NOT demanded the code for the site. just the domain and information about the distribution, so they can estimate damages. He will NOT have to surrender code.
  • Salvage (Score:3, Informative)

    by cpt kangarooski (3773) on Monday March 21, 2005 @09:09PM (#12007325) Homepage
    Frankly, Hasbro is basically right with regards to the name -- it might be possible to show that the name is generic, but it'd be difficult and seems somewhat unlikely.

    They're also probably right with regards to the game board and the description of the rules.

    However, game rules -- i.e. the system by which a game is played -- are not copyrightable. They're patentable, but any patent on scrabble probably expired long ago. Only a particular written expression of game rules are. And even the expressions aren't particularly strong, given the merger doctrine.

    It might be a good idea to come up with a completely new board graphic that still functionally was the same, and to rewrite the rules from scratch, making sure that they didn't match the language in the official rules, and to come up with a completely unrelated name. Just as scrabble is a made up word, just make up a totally new word.

    Of course, past infringements may still be litigable, but there's nothing to be done about them other than to a) wait out the statute of limitations, or b) get Hasbro to agree not to sue.
  • Re:Wow (Score:3, Informative)

    by Maradine (194191) * on Monday March 21, 2005 @09:12PM (#12007347) Homepage
    1. Let fan make game

    Um, I hate to side with the machine here, but Hasbro made the game.

    If a third-party made a web-based Warhammer clone called e-Warhammer, Games Workshop would sue.

    If a third-party made a web-based Axis and Allies clone called e-Axis and Allies, Avalon Hill would sue.

    Frankly, so would I.

    M

  • Re:Uhhh (Score:4, Informative)

    by cgreuter (82182) on Monday March 21, 2005 @09:16PM (#12007385)

    kay, so... they took the trademarked name and one would assume copyrighted game design [...]

    Games are not copyrightable. The artwork is, yes, as is the text of the rules and the design of the pieces, and the name is trademark but the game itself has no IP protection.

    You know there's a lot of reasons I'm not crazy about Hasbro but I really just can't see anything unreasonable about this.

    I can see Hasbro requesting that he stop using their trademark and stop distributing copies of their artwork (as the letter alleges they were doing) but they're demanding he dismantle the site. That may just be lawyering, but my paranoid little brain interprets this as an attempt to shut down a potential competitor.

    That, or generic corporate bullying.

  • Very bad example (Score:4, Informative)

    by lakeland (218447) <lakeland@acm.org> on Monday March 21, 2005 @09:54PM (#12007699) Homepage
    Lindows was found to be NOT infringing trademark. So, Microsoft sued them in Sweeden, on the grounds that Sweedish users could go to the site too. Microsoft lost, again. Then Microsoft sued them in Germany, over the same issue, and lost, again. Next microsoft sued them in the Netherlands and didn't even bother telling them about it, so they didn't turn up to the court and Microsoft won by default (apparently posting a notice in the local paper is sufficient in the Netherlands). Almost certainly it would be overturned on appeal.

    But, how many countries does Microsoft have offices in? How much would it cost to win the same lawsuit again, and again, and again? So, they settled with Microsoft paying them around $20M to change their name.

    Trademarks on generic words are extremely weak.
  • by pbhj (607776) on Monday March 21, 2005 @09:57PM (#12007728) Homepage Journal
    Whoever wrote the page at http://home.teleport.com/~stevena/scrabble/legal/i ssues.html seems to think that the quoted case shows that online gameplay should be allowed under US fair use laws (I don't think it would be allowed in UK law though).

    The infringement of the trademark would be a problem though so a domain name change (howabout the letters of scrabble, scrabbled??) would appear to be in order.

    Some info on the history of scrabble is at http://www.seniorcenterinc.org/programs/scrabble.s html.

    This site is quite thorough on the history http://www.scrammble.com/historyscrabble.html.

    It seems that Scrabble was actually invented in 1933 which could be a way around the patent and copyright issues ... if you could find original documents and copy those instead of copying the later protected documents/works. Bit hard though!

    If you look at sites like http://www.copyright.cornell.edu/training/Hirtle_P ublic_Domain.htm they suggest that it's possible that Scrabble is in fact in the public domain, you'd need to check the copyright renewal details. Otherwise it seems we have about 40 years to wait for Open Scrabble.

    I'd ask for details of how it is protected. No patent numbers are given for the applications. I think you should be allowed to use any details in the 1948 patent (? various sites say it was copyrighted and/or patented 1st December 1948) in accordance with whatever copyright notice it carries. But IANAL nor a US IP Judge.

    Peace.

    PS: The TRADEMARK details are here http://assignments.uspto.gov/assignments/q?db=tm&s no=71570633 (original number is 524505).
  • by saddino (183491) on Monday March 21, 2005 @10:06PM (#12007811)
    Looks like one of those newfangled 'words in the dictionary' that arent suppose to be trademark-able to me. Whats wrong with the world.

    What's wrong is that you think "newfangled 'words in the dictionary'...arent suppose to be trademark-able".

    Go to the store. Do you see:
    - Tide
    - Scope
    - Crest

    Good. Now open your dictionary.

    Any word makes a fine trademark as long as its not generic in its market. The "dictionary test" is a myth.
  • by haluness (219661) on Monday March 21, 2005 @10:13PM (#12007873)
    If you're talking about isc.ro, the client is fine. I was also worried but a netstat did'nt show any unecessary connections.
  • Re:Uhhh (Score:3, Informative)

    by AssHatAnonymous (869725) on Monday March 21, 2005 @10:19PM (#12007925)
    Ditto for the Scrabble trademark.
    Right. Because nobody should be able to stay in business under the same name as long as they are successful at it without some complete and total loser, like yourself, coming along and leveraging the original company's reputation, advertising, brand loyalty, in order to sell a cheap knockoff under the same name. Retard.
  • Yes, e-scrabble violates Hasbro's trademark. Fine. e-scrabble should have chosen a different domain name. But the board (with "double score", etc.) is copyrighted. However, Scrabble was invented in 1948, and with the copyright law in force at that time, would have been copyrighted for 56 years (ending in 2004) were it not for the retroactive Copyright Law of 1976.

    It is these retroactive copyright laws that Eldred was arguing to the Supreme Court created perpetual copyrights, in variance with the U.S. Constitution that called for a "limited time".

  • Re:Copyrightable? (Score:1, Informative)

    by Anonymous Coward on Monday March 21, 2005 @10:26PM (#12007981)

    No, the layout of the board is a design - it is not copyrightable. Now they can copyright the artwork involved in making the board, but only their artwork. Draw up your own board using their design and it's yours.

    Dictionaries & word lists are definitely NOT copyrightable. Just like phone books are not copyrightable. They can only copyright their printing/expression of the word list. Check out a couple of dictionaries - they are all copyrighted by their individual publishers. They are not copyrighting the word list in them, but the specific formatting & layout.

    rho
  • by shanen (462549) on Monday March 21, 2005 @10:31PM (#12008017) Homepage Journal
    The whole point of IP law is to prevent such tragic innovations and creativity. Remember:
    To promote the Progress of Science and useful Arts...
    Wait a minute, something's wrong here. How about:
    The best laid plans of mice and men...
    Yeah, that's more like it.

    The founders sure had a lot of clever ideas that have been completely forgotten along the way, and usually for the sake of making a buck. Actually, pretty pointless to worry about it, but I think if he were writing the Constitution now, Jefferson would have explicitly specified that "limited time" did not mean "forever or as long as we can milk two more cents out of the original creativity, whichever comes first." After careful reflection, he probably would have said that software patents should last about 6 months. Remember that the goal was to *ENCOURAGE* creativity, not to create an ironclad system to stifle it.

  • by 1u3hr (530656) on Monday March 21, 2005 @10:41PM (#12008101)
    If a way to play a game isn't patentable, then why should a way to do something in software be patentable?

    However, patents expire after 17 (?) years -- much too long for software to be useful, but Scrabble was invented in 1931, so any patents on the game concept are long dead. Copyright on the rules is easy, just paraphrase. The dumb thing was the name, which is trademarked, they can last forever.

  • Re:Uhhh (Score:4, Informative)

    by stonecypher (118140) <{moc.liamg} {ta} {rehpycenots}> on Monday March 21, 2005 @10:49PM (#12008169) Homepage Journal
    Isn't this just Hasbro saying "we'll take the game and the site from you and run it ourselves...

    No, it isn't. They're not interested in taking any of his work. What they're doing is saying "Scrabble is ours. Cut it out and quit selling our things. And by the way, since there's no way for you to sell scrabble, and since you've been breaking the law taking our trademarks, give up the name to us."

    Trademark law supports this. Copyright law supports this. Patent law supports this.

    then possibly take any money you made from it in the last year

    1) they're not taking the money.
    2) Scrabble belongs to them. Anyone selling scrabble is taking their money. If I get the coke formula and sell coke, the money belongs to Coca Cola. What part this is hard to understand? You're not allowed to just copy other people's things and sell them. Period. Even when it's a big company. It's that simple.
  • Re:Uhhh (Score:5, Informative)

    by Anonymous Coward on Monday March 21, 2005 @10:59PM (#12008252)
    If I get the coke formula and sell coke, the money belongs to Coca Cola.

    Not so. The formula for Coke is a trade secret, not a patent or a copyright. If the formula ever leaked out, it would obviously be a secret no longer. There would be nothing (legally) that Coca Cola could do to you unless you were dumb enough to sell your drink under one of their trademarked names.

  • by the_skywise (189793) on Tuesday March 22, 2005 @12:07AM (#12008762)
    That's what's happening with City of Heroes. Marvel is suing on the basis that, with their generic engine, they can build and play Marvel characters.
  • I call bullshit (Score:1, Informative)

    by Anonymous Coward on Tuesday March 22, 2005 @12:29AM (#12008891)

    This is like the . . . case where Disney sent a C&D to some Florida pre-school for painting Mickey, Donald et al, on their walls. . . . Hanna Barbera . . . gave them permission to use their characters. It made . . . HB look like saviors.

    . . . Disney . . . really didn't have a choice in the matter. Disney can't afford to lose the trademarks they have on Mickey and company.

    Bullshit. I lived in Gainesville (FL) when that happened. The preschool was on the bacon strip out NE 16th Ave. And yes, it was massively bogus of the Mouse people. I prefer the HB characters anyway.

    This was just a local nursery, and folks, there was no threat to Disney's trademarks. It was free advertising for the Mouse, something that Hanna Barbera apparently had the smarts to understand---and take advantage of.

    The nursery did not use the Disney name, did not use the characters as advertising, etc. They simply had them painted on the outside walls to amuse the kiddies (and nauseate people like me).

    Back to the main topic: Sounds as if Hasbro should do something about that case of recto-cranial inversion, make Jared a good offer for both the site, the software, and hire him at a good salary to keep running it. Then everyone can be happy!

    Happy Hump Day,
    Mal the Elder

  • This is a well-meaning misunderstanding. The reason that game designs cannot be copywritten is not that they are not legally defensible. The reason is because they get patented instead. Tengen and Mirrorsoft found this out from Nintendo, Spectrum Holobyte and Elorg. Sega found this out from Hudsonsoft, and then a second time later from Sammy, who now owns them. Many small software developers have recently found this out (in a remarkably pleasant fashion) from Capcom, because Rio Grande games used to take a very lenient stance on independant development of their games including the popular Settlers of Cataan, but later sold the game rights to Capcom, who turned around and put a stop to the amateur developers.

    Capcom wrote an apologetic letter and gave out free money just to make people feel better, but they didn't actually have to do that. They were just being good people, which shocks the hell out of me in this day and age.

    There are two ways to protect a game. You protect the mechanics and the branding seperately. I'll show how this works.

    Consider the case of Monopoly, a well protected Parker Brothers property which has been through huge amounts of battle in US legal history and established most of the law which led to the very protections being discussed. (You might read up on Monopoly's legal background; it's quite convoluted and interesting, and the amount of wrestling for control which happened over a fifty year period is just astonishing.)

    Monopoly is a good example because it has a lot of variants, both in theme and in game mechanic. We're all pretty familiar with the recent bevy of "star wars monopoly," "simpsons monopoly," "lord of the rings monopoly," et cetera. That's branding. If I were to release, say, "Stoner monopoly," I would be liable against Parker Brothers' game design patents. They couldn't take me to task on copyright law, because instead of Park Avenue I'd have "The Park Street Dealer;" instead of community chest, "the weird hippie gather in the park," et cetera. No copyright infringement; Marvin Gardens doesn't appear anywhere on the board.

    Now, consider that there's another kind of monopoly variant, with many fewer examples, most of which aren't well known. Monopoly Junior is probably my best chance: it was a short-lived early 90s monopoly-style game, but the rules were simplified and the board made a little smaller with fewer statistical quirks. Now, if I were to release "monopoly senior," which was the same sort of thing - I make the game more complex, add more statistical anomalies, make some more detailed rent rules, whatever - then I'm not liable under patent law, because the game design isn't the same. However, at that point I am liable under copyright law - I'm using the monopoly title, my board names all of the cells on the original board (plus some new ones,) community chest contains all the old community chest cards, etc etc etc.

    Yes, game designs are legally defensible; the annals of gaming history are littered with bitter fights over who invented what, especially post-depression and in the strategy gaming community. Whole game companies have disappeared because of these lawsuits, and control of some of the most lucrative properties in history has been exchanged by the courts on these rights. Consider that there's an estimate that ownership of the Tetris property by all parties cumulative over time has been worth almost 600 million dollars; when you get into those sorts of numbers, lawyers will make damn sure that the law is clear one way or the other. In this case, of game mechanics being defensible, the court has ruled only one way since the early 1950s: if the game mechanics satisfy a certain closeness to the claimant, then they are considered a duplication of a protected process, and regulation is undertaken.

    I mean, look, there's a ton of case law about this. Probably the best thing to look up is the tengen-elorg thing over tetris; the feud was huge, the losing side owned a media empire and tried t
  • by Max Threshold (540114) on Tuesday March 22, 2005 @01:14AM (#12009150)
    The copyright on Scrabble expired in 1959. If Hasbro's lawyers have a problem with that... they can just come over to my apartment and give me head.
  • Re:Uhhh (Score:4, Informative)

    by stonecypher (118140) <{moc.liamg} {ta} {rehpycenots}> on Tuesday March 22, 2005 @01:58AM (#12009403) Homepage Journal
    You're right, and I probably should have been clear that I didn't mean to imply that Hasbro was acting on patent law. In another post in another thread I pointed that out explicitly and I forgot to here.

    The reason I discussed patent law was to try to clear up what I see as misapprehensions about whether a game is protectable at all. The reason I contrasted it to copyright law, especially in the case of Monopoly where the distinction can be made so clear, was to display multiple routes of protection and how the different ones applied in different situations, because I believe that a lot of the misapprehensions about what may and may not be done come from an incomplete understanding of the phrase "game mechanics may not be copywritten" as in contrast to patent rather than protected in any way.

    You are quite correct: Hasbro is only protecting their content material, not the fundamental nature of the game. Nonetheless, I stand by my evaluation: they're being very kind, and the original poster and the editor which accepted the story see things in a very different light than I do.
  • by humankind (704050) on Tuesday March 22, 2005 @02:11AM (#12009455) Journal
    Scrabble is a registered trademark owned in the United States and Canada by Hasbro, Inc., and in Great Britain and everywhere else in the world, by J.W. Spear & Sons PLC, a subsidiary of Mattel.

    Selchow & Righter, listed as the US owner on many of your boards, was bought -- in good health -- in 1986 by Coleco, which shortly went into bankruptcy due to the collapse of the market for their Cabbage Patch dolls. Coleco also led itself to bankruptcy in 1987 by losing a fortune on the Adam home computer flop, and the unexpected (to them) slowdown in Trivial Pursuit sales. (Trivial Pursuit was marketed in the US by Selchow & Righter). Scrabble was sold off to Milton Bradley, which was in turn gobbled up by Hasbro. Hasbro since has transferred Scrabble to its Parker Brothers division, itself a fierce Milton Bradley competitor before its absorption.

    In North America, Hasbro needs it to appear that the public thinks that the term Scrabble refers to any game or related product Hasbro cares to label that way, while the popular board game is "Scrabble Crossword Game." Most people -- including Hasbro's own publication before their lawyers clamped down -- use the term Scrabble to refer to the game itself. To most, it is "the crossword game Scrabble" (although the "crossword game" part is far from almost everyone's mind), rather than "the Scrabble Crossword Game."

    The magazine Financial World (July 8, 1996, p. 65) estimated the value of the Scrabble brand to Hasbro as $76 million, and 1995 sales under that brand at $39 million.
  • Re:Well... (Score:3, Informative)

    by jamesots (214246) on Tuesday March 22, 2005 @04:30AM (#12009960) Homepage
    Actually, "Scrabble" only belongs to Hasbro in the US and Canada. Everywhere else in the world it belongs to Spears.
  • Similar incident (Score:3, Informative)

    by Smuffe (152444) on Tuesday March 22, 2005 @05:11AM (#12010106) Homepage
    We had a similar incident in Sweden a couple of years ago, with a privately created online Scrabble(tm) game. He also got a C&D letter (from Mattel, I think they own the UK rights?) but in his case I think it was enough to change the name. The bad news is he started charging people to play it :/ Fortunately, a few months later the free version surfaced and now I'm happily wasting lots of time juggling letters.
  • by gowen (141411) <gwowen@gmail.com> on Tuesday March 22, 2005 @06:06AM (#12010318) Homepage Journal
    Not any more, because Marvel is getting creamed [al.com] in the City Of Heroes Lawsuit.
  • Re:Copyrightable? (Score:3, Informative)

    by anthony_dipierro (543308) on Tuesday March 22, 2005 @06:52AM (#12010458) Journal

    No, the layout of the board is a design - it is not copyrightable.

    Design is not copyrightable? Where do you get this idea?

    Dictionaries & word lists are definitely NOT copyrightable.

    They are if they pick a creative selection.

    Just like phone books are not copyrightable.

    Read the Feist decision again. Phone books are not copyrightable per se, but if they employ a creative selection then they are copyrightable.

    Check out a couple of dictionaries - they are all copyrighted by their individual publishers. They are not copyrighting the word list in them, but the specific formatting & layout.

    They're copyrighting the selection, the formatting, the layout, the definitions themselves, many things.

    Let's put it this way. Try putting the official scrabble dictionary list of word on your website and see when you get sued.

  • by Moraelin (679338) on Tuesday March 22, 2005 @07:35AM (#12010590) Journal
    Thing is, would it have become even socially acceptable, much less common cultural stock, if it was invented in 1948?

    Thing is, chess was supposed to be a modern (for that age) wargame. Same as, say, Warhammer 40k or Battletech nowadays.

    (Purely for the sake of an unneeded tangent: originally a 4 player game. That's why you have even numbers of every piece, except the king and queen, which originally were two kings. Each of the 4 players started off one edge of the board, with half the pieces. Then eventually they figured out that, in that age before the Internet and online multiplayer, it was a pain to get 4 players together. So each side took two armies, and one king became a "grand vizier". Naming it Queen was a much later medieval invention: back there and then the queen had zero power or rights, but a grand vizier was a very powerful character.)

    Look at it this way: if you go out to play Warhammer 40k, you're a "nerd". If you go out to play chess, you're some kind of social or cultural elite.

    What's the fundamental difference? That chess wasn't invented in the 20th century, that's all. Chess was already accepted as a socially-acceptable conformist passtime.

    So would it really be a problem if chess was invented in 1948 and trademarked? Probably not, because it would fall under the same heading as Warhammer 40k or Battletech: something only nerds do instead of going out and meeting people.
  • Re:Uhhh (Score:2, Informative)

    by Anonymous Coward on Tuesday March 22, 2005 @09:15AM (#12011211)
    Hey stonecypher - knowing is half the battle. e-scrabble is a free game. Its less than small potatoes. There are NO potatoes to be had.
  • Re:Well... (Score:4, Informative)

    by Shalda (560388) on Tuesday March 22, 2005 @09:35AM (#12011382) Homepage Journal
    All these extensions apply retroactively automatically. They're sometimes called "Mickey Mouse" extensions as the most notable work that's just this side of falling into the public domain is the first Mickey Mouse cartoon.

    That said, you can't copyright the mechanics of a game. You can copyright the visual elements and possibly the layout of the board, and even everything combined as a "collection". However, there's nothing you can do about a game that plays the same. Trademark, of course, can be renewed indefinately. Hasbro is well within their rights to demand that they use a different URL and refrain from any use of the Scrabble trademark, except as it refers to the actual Scrabble board game.
  • by Anonymous Coward on Tuesday March 22, 2005 @11:53AM (#12012934)
    The game was turned down [mattelscrabble.com] for patent in 1938. The Scrabble name was created later.
  • by LinuxLuver (775817) on Wednesday March 23, 2005 @01:51AM (#12020970)
    The US has repeatedly extended the copyright term from 14 years to 75 years.....in part to keep Disney's Mickey Mouse from passing into the public domain. But the most of the rest of the world uses a 50 year copyright term. If Scrabble is more than 50 years old, the e-scrabble folks could relocate it to a server in a country with less onerous and unfriendly copyright laws than the US. I wonder if the US will try to extent their limit from 75 years to 100 years when Mickey comes up for expiry next time?

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