The trademark is a powerful tool that although has drawn some ire, continues to be a legitimate way to hold the right to an image or theme through an extended period of time. Before we can even evaluate trademarks however, we must first realize what their original intention was for.
Trademarks have existed as a way to prevent confusion between brands. So that companies have control of what their own image is, trademarks work as a means of preventing others from infringing on their brand. It makes logical sense that people will want to protect the products of their time and energy. The idea pretty much makes the same amount of sense as it did when the idea first came up… back in the 14th century.
Flash forward nearly 700 years. What do we make of trademarks today? Well, in the modern and digital age, now more than ever, trademarks play an important role in brand management. With the ever growing spread of information and pictures throughout the world, it becomes imperative that companies protect their own image when necessary. Now although not all of what these companies do may seem right, the protection of an image and its brand are a necessity for companies (existing and future ones) to have peace of mind in spreading the brand.
Those who disagree will point out the loss of one of Facebook’s most popular games of all time. The now defunct Scrabulous.
For many, Scrabulous was trademark rearing its ugly head. However, all will admit that scrabulous was a clear ripoff of Scrabble.
Was the style of the block the same? Yup. How about the board positioning? Definitely. The value of the letters? Of course. The color of the double up and triple value squares? All of the same.
Now, don’t get me wrong. When Scrabulous was around, it was an amazingly fun game to play while procrastinating homework. However, few if any will disagree that individuals, not of the Scrabble name (said: Hasbro) profited heavily from a product that was not theirs. With all of the blatant use of what Scrabble was, it was only a matter of time Scrabulous was shut down. Many argue that Scrabulous renewed interest in Scrabble, that it sold more product than had been sold in the many decades since it was first released. Just because a product increases the popularity, doesn’t mean that the unauthorized use of the brand is any better. Although Scrabulous looked, felt, and seemed the same as Scrabble, it wasn’t Scrabble. Hasbro had a problem with that and with good reason. Left to its own vices, Scrabulous could have changed Scrabble in ways Hasbro didn’t want to deal with. A brand is an image that gains value from what it represents. When the item for which it represents fragments, there arises problems.
Don’t believe me? Let’s check out the real world to see a similar phenomenon of trademark violations.
These are Nike Hyperdunks. A shoe head’s dream kicks (Translated: An enthusiastic shoe collector’s valuable pair of shoes). These retail for about $100 USD, but further on in its lifecycle, they will retail for a lot more than one Benjamin. As you can tell in the picture, they look awesome, fit very well, are extremely light for their design, and if Kobe Bryant is to be believed, allow you to jump over a speeding Aston Martin.
Oh, the best part of the shoes you just saw in that picture are that they are fake. 100% authentic made in china ripoffs. These are the real Hyperdunks:
Can you tell the difference? Not many, if any can. They look the same, feel the same, smell the same, and seem to function the same, but they’re not the same. The weighting is different, the support technology different, and apparently they “feel different” (my brother’s words, not mine). However, to the unsuspecting buyer who’ll probably buy this pair of shoes at a “great” deal for $40 dollars on eBay, they might as well be the same Nike hyperdunks they saw advertised. This shoe represents what Nike trademarked: it’s brand, it’s image, and its product. The nearly identical ripoff represents degradation to all three of those aspects. And so, the discounted shoes not only discount the quality of the merchandise, but then charge the discount to Nike’s reputation tab.
Now, I’m not saying that all copies are as blatantly terrible. Scrabulous functioned well and for all intents and purposes, was Scrabble. Hasbro, however, had every right to get rid of Scrabulous as it could have very well misrepresented its brand (as it did when it was buggy in the beginning). To draw from the loss of Scrabulous that trademarks are a cancer in this society is ridiculous. Trademarks are one of the few things that actually seem to work in the digital age. Why fix a relatively working thing when there are other terribly broken things to fix (*cough* copyright, DMCA, net neutrality, patents…)?
-Sebastian
Yale Law Tech 
I think I agree with you in the case of Scrabulous. The people who dislike what happened generally tend to be angry about losing Scrabulous, but no one disputes that it was a blatant ripoff of Scrabble. Hasbro does have a right to insure that the Scrabble brand is not diluted, which is why they didn’t want Scrabulous to be out there and have no control over it. I do feel that they could have handled the situation better–they could have bought the rights to Scrabulous and insured that it was up to their standards rather than building a new Facebook app (which many people consider to be inferior to Scrabulous). However, the fact remains that Scrabulous was infringing on Scrabble’s trademark.
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