I’m a transactional attorney and not a litigator so I’m often seeking ways to resolve disputes through negotiation rather than through a lawsuit.
For example, I was recently brainstorming alternative resolutions with a client that is about to challenge an infringing trademark. We discussed how the client might combine resources and collaborate with the other party through a licensing or joint venture arrangement . Negotiation can be an attractive option because in a lawsuit sometimes only the attorneys win. Of course, you have to weigh the downsides of litigation against the possibility of being partners with someone who may have deliberately attempted to steal your intellectual property. You also need to make sure that the partnership arrangement doesn’t subject you to other types of liability.
The Case of Scrabulous Versus Scrabble
The case of Scrabulous/Scrabble illustrates a missed opportunity for adversaries to benefit through a joint effort.
Scrabulous is an online game that became a very popular Facebook application racking up over half a million users. You play Scrabulous very much like you play Scrabble. In fact, Scrabulous is so much like Scrabble that Hasbro, the company that owns the North American rights to Scrabble, filed a copyright and trademark infringement lawsuit and insisted on the removal of Scrabulous from Facebook. There is a new online version of Scrabble, developed jointly by Hasbro and videogame publisher Electronic Art. One report I read placed daily active users of the online Scrabble at 50,000. However, online Scrabble experienced a number of hiccups and public relations set-backs including the anger of Scrabulous fans who threatened to boycott Scrabble and other Hasbro games, downtime of online Scrabble at the initial launch thanks to a computer hacker, and several bugs that make playing the game clunky. Furthermore, a Hasbro lawsuit does not necessarily kill off all Scrabble’s online competition. While copyright law prevents someone from creating a board game that is substantially similar to your board game, it does not prevent someone from duplicating the idea or concept of your board game. That means anyone can create a board game based on forming words – as long as it’s not too much like Scrabble. Less than two days after removing Scrabulous from Facebook, the game’s creators relaunched a replacement application called Wordscraper. In addition to the name change (which addresses Hasbro’s trademark claim), other changes between Wordscraper and Scrabulous include a different scoring mechanism and an altered look and feel that makes the game look less like the original Scrabble. Based on user comments, no one seems to like the online version of Scrabble or the new Wordscraper as much as they liked Scrabulous.
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