Scrabulous brothers can continue with game, says Delhi court

The ruling said, though, that the Agarwala brothers must stop using the name 'Scrabulous' or any other name that resembles Scrabble's, according to intellectual property blog Spicy IP and local press reports.

Rajat and Jayant Agarwala took the world of social networking site Facebook by storm in the past year with their incredibly popular game, Scrabulous. Toy companies with rights to Scrabble objected, though, and Facebook blocked access to the games first in the US, then in the rest of the world.

The Agarwalas operated in India through RJ Software, which was taken to court by toy giant Mattel, which has rights to Scrabble outside of the US.

The Delhi High Court told RJ Software that it could not use the names Scrabble, Scrabulous or any other "deceptively similar" term to describe its games, according to Spicy IP. They were also told not to use such terms in the metadata attached to the game. Such data can be read by computer systems, such as search engines.

The Agarwalas had argued that the term 'scrabble', which was a word before it was a game name, was generic and therefore could not be protected by trade mark law. The court disagreed.

The Court did say, though, that Mattel could not claim copyright in the game itself. The idea behind the game could not be protected because copyright does not protect ideas, it said. And the board could not be protected because it was not original enough, the Court said.

The board might have been protected by design rights, but none had been applied for. Indian copyright law does not protect items that qualify for design protection but fail to apply for it once that item has been duplicated 50 times, Spicy IP said.

Trade mark law expert Lee Curtis of Pinsent Masons, the law firm behind OUT-LAW.COM, said that it was no surprise that the law had largely backed Mattel.

"'This decision from a legal point of view was probably inevitable. Scrabulous was obviously based on the well known brand name Scrabble and the public were initially attracted to the online game due to the similarity with Mattel's board game," he said.

Curtis said, though, that companies in such positions face a strategic question about whether pursuing such cases actually advances the aims of a company. 

"Whether or not this is pyrrhic legal victory for Mattel, only time will tell," he said. "Players of Scrabulous are already in open rebellion on the web. Sometimes bad PR often overwhelms a good legal case."