August 1, 2008 5:08 PM

Game Boys Counter Hasbro's Claims With Wordscraper Application

Posted by Jonathan Thrope

It's Hasbro's turn to move.

Yesterday, just two days after they took down the controversial Scrabble look-alike Scrabulous, RJ Softwares' Rajat Agarwalla and Jayant Agarwalla launched a new application on Facebook. Wordscraper is its name, and the Agarwalla brothers certainly hope it's there to stay. The game has the same basic rules as Scrabulous (though the rules are not posted online) and the same game board dimensions. Wordscraper features circular tiles instead of squares as well as quadruple word scores and a green-and-blue tint (see a screenshot below; click on the image for a larger view).

Last Thursday,  Kim Landsman and associate John Knapp of Patterson Belknap Webb & Tyler filed a complaint in the Southern District of New York against the Agarwalla brothers, alleging copyright and trademark infringement for Scrabulous.

"It seems like they've been very, very careful to differentiate [Wordscraper from Scrabulous]," says Richard Stockton, a partner at Chicago-based intellectual property firm Banner & Witcoff, who is familiar with but not involved in the lawsuit. "It's almost as if they went line by line in the complaint...and adjusted the game accordingly."

Stockton says the trademark infringement claim has been thrown out the door by the new game, since Wordscraper contains no references to Scrabble. With the remodeled board, Stocks says it is also going to be tough for Hasbro to argue copyright infringement.

Doug Masters, cochair of the IP practice at Loeb & Loeb, agrees. "I think the Wordscraper folks are on the right side of the issue. It's a close call, but I think Wordscraper has done enough." At issue is the distinction between an idea and the expression of the idea. Masters says this can be tricky when it comes to software. "What they've done is kept the concept, and changed the expression, and the fight is going to be about how broad is the protection that Hasbro's going to get."

Nonetheless, Masters guesses Hasbro will make another move. "I doubt that Hasbro will consider this as resolving the matter. I think Hasbro will continue this as a copyright problem." The toy giant's best claim for infringement, despite the makeover, lies in the continued, if any, likeness to the Scrabble board game.

Meanwhile, Hasbro seems to have benefited from its actions. Its officially sanctioned Scrabble Facebook application, launched several weeks ago with EA Electronics, is getting lots of play. In the week since the Scrabulous suit was filed, Hasbro's application went from a measly 10,000 active daily users to over 85,000.

What Wordscraper's entry will do to that traffic only time (and possibly litigation) will tell.

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