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Why is Scrabulous still up?

July 10, 2008 |  7:41 pm
Hasbro's Scrabble on Facebook

After Hasbro and Mattel went after the creators of Scrabulous with takedown notices, players of the popular Facebook word game keep expecting their latest match to be their last. But Scrabulous lives on, months after the toy companies rattled their legal sabers.

To find out why, we turned to Henry Sneath, an intellectual property attorney in Pittsburgh and the national director of DRI: The Voice of the Defense Bar, a group representing 22,000 defense lawyers.

His independent take on the matter: You can probably count on being able to finish your current Scrabulous game. That's because neither Hasbro nor Mattel has filed suit against the creators of Scrabulous, Jayant Agarwalla and Rajat Agarwalla, who are based in India. The only way to shut down Scrabulous via legal channels is to get a judge to issue an injunction, which can be done only after plaintiffs have filed suit, Sneath said. Even in a clear-cut case of infringement, an injunction is not guaranteed. The case would be further complicated by the fact that the Agarwallas are in India. "A judge would have to find a way to get jurisdiction over those two gentlemen," Sneath said.

Until then, Hasbro made its move this week by launching an early version of its authorized Scrabble game for Facebook users. Developed by Electronic Arts, the game features snazzy graphics and a slick interface. Other than that, it plays just like ...

... Scrabulous, which itself is a strikingly similar digital version of the original Scrabble board game. Chip Lange, who manages Scrabble for EA, said the authorized version, expected to have its formal launch later this month, will give users a smoother experience and be more reliable than its rival.

"We've been doing online games for many years, and we bring tremendous resources to ensure the reliability and quality of the experience for our players," Lange said.

The difference is that Scrabulous counts half a million players daily on Facebook, making it one of the most popular applications on the social networking site, while Scrabble is just getting started.

Neither Hasbro nor Facebook wanted to comment on what actions they may take, legal or financial. But Sneath helped us spell out a few possible scenarios. In one scenario, Hasbro and Mattel may want to join 'em, rather than beat 'em. "It seems that Scrabulous is so well ensconced that it could make sense for them to make a deal," he said.

The Agarwallas, in a statement e-mailed to The Times, position their enterprise as a social endeavor, rather than a profit-making one: "We have been passionately serving the Scrabulous community for over three years and it has now grown into a network of more than 5 million users. This has been possible as we have never treated Scrabulous as a business. We have only tried to provide a platform that allows users to connect with their friends, and at the same time derive meaningful leisure and entertainment for free."

But that doesn't mean they would be averse to a financially rewarding arrangement. "It's possible they are positioning themselves to get a deal from Mattel and Hasbro," Sneath said.

Hasbro and Mattel are also benefiting from this situation. The media spotlight on Scrabulous has helped elevate interest in the launch of Scrabble, Sneath said. Hasbro and Mattel "have a financial incentive to turn this into a positive scenario."

Indeed, Hasbro's general manager for digital media and gaming told the Associated Press that there had been discussions about a collaboration with the Agarwalla brothers before settling on a long-term licensing partnership with EA.

Another possibility, Sneath said, is to launch a lawsuit and seek a temporary or permanent injunction to shut down Scrabulous by proving to a judge a strong likelihood of success on the merits of the case. Until then, Scrabulous isn't likely to go anywhere.

Scrabulous to Scrabble: Your move.

-- Alex Pham

Photo: Screen shot of Scrabble for Facebook users courtesy of Electronic Arts

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