Some days I don’t know whether to laugh or cry. I was just running through my feeds at lunch and I came across this post from Shel Israel. It seems that Mattel and Hasbro have issued a take down order on the popular Facebook application Scrabulous due to trademark infringment. As of this post there are 600,563 active users of the application.
Clearly this is a trademark violation, but just look at the reach that this single application is having. There has to be a balance between legal and marketing in order to thrive in new media. Personally, I never really thought about Scrabble until I saw the flood of invites and blog posts and messages on Twitter about this little applicaiton. Personally I don’t own the real world game, but I know people who did buy it after this Facebook app reinvigorated their passion for it.
If I were in Mattel’s marketing department here is what my train of thinking would be here:
- Somebody please kick the legal department out of the room. Thanks, now let’s continue.
- Wow! These guys built an awesome application around our brand
- We NEED to talk to them and buy this application ASAP
- We NEED to hire these guys (or at least retain them) to do updates and possibly roll this out to other networks (Bebo, MySpace, etc.)
- Seriously guys, keep those lawyers out of here! Just tell them somebody in accounting is using the wrong Pantone color in the logo again.
- If we can’t buy it, we at least need to sponsor/co-present it as *the* official Scrabble game on Facebook
- If none of those options work we need to congratulate those guys publicly for their efforts and encourage people to join in
- I wonder why we didn’t think of this.
I think way too much of the marketing decision making is done by zealous, old-school, out-of-touch marketers or the legal department. I’ve personally run into legal departments that have the marketing group so fearful that the lawyers start making branding/positioning decisions for the company. That’s a very scary idea in my mind.
Any marketer out there should be looking at all of the options inside social networks like this. Look at these four actions steps to get the most value:
- Creation: build the application, group, etc. that fits your business goals and adds value to your customers.
- Acquisition: If you’re late to the party you should look at what is out there and set some acquisition targets. Look for those people adding the most value even if they don’t have the most traction.
- Collaboration: If you can’t/won’t build it and somebody else has, look for ways to collaborate with them. Support them in ways that bring value to the users.
Companies have to defend their brands from nefarious use. That’s a given. But the law isn’t keeping up with the times and the lawyers have no choice but to fight. As Shel Holtz said, “blame the law, not the lawyers”. Marketing departments and legal departments need to get on the same page going forward in this new world of marketing and customer involvement.
Have you seen any other examples of marketers making snap judgements and persecuting their biggest fans? Social media is about supporting evangelists, not crushing them in a public display of force.
Tags: Facebook, hasbro, howto, Marketing, matt dickman, Mattel, scrabulous, Shel Israel, Social Media, techno//marketer
Matt-
Great post and I couldn’t agree more. What a wasted opportunity for Scrabble on a young growing market of consumers that for the most part, don’t own the official Scrabble game.
I wonder if the situation is a bit more complex.
Tell me if I have the story straight– some developers in India created Scrabulous as an application to run on Facebook. Facebook offers itself as the platform for such apps but doesn’t own the apps. Hasbro/Mattel are concerned with trademark infrigement issues, and they own trademark for Scrabble, but not Scrabulous application.
Where does this leave Mattel/Hasbro if they want to build their own Facebook app, or build their own online scrabble game (I get that it wouldn’t be on Facebook then). It pretty much leaves Mattel/Hasbro between a rock and hard place as the owners of the IP and trademark.
That said, I wonder if they would pull the plug if sales of the board game were really taking off.
I think we’re missing some information here.
Matt,
I hear your POV and wish it was that easy. But Paul is correct. Copyright infringement is serious business, and if a company ignores infractions, a court could rule that they no longer own all the rights. This is a complex legal (not marketing) issue.
Paul and Lewis — You are both correct. It is a more complex situation and there is legal due dilligence that has to happen with the way the law works. I’m trying to get more to the essence of the litigate vs. innovate conflict that is rampant in big companies. That is a legal issue.
On the marketing issue though, this app has renewed interest in a stagnant brand. Why wasn’t Mattel they doing this first? Why are they just doing this now? Those are my questions. For smaller companies, they’d probably kill for this type of attention and brand awareness. How can companies add value through their evangelists and let them create community? Or, should they just shut it all down and sue the heck out of people?
Lewis/Paul,
I think you guys have valid points, but if you were Mattel/Hasbro, why wouldn’t you want to partner with the makers when they have 602,915 daily active users. Why spend the development and testing costs to build your own app that may or may not succeed when you could partner with a group that already has the market share?
John — I have read that Mattel is trying to work out an arrangement, but they obviously weren’t on top of social media from the start or they would have built this app. They could endear a lot more loyalty from advocates with a different message outside of “we demand they stop”.
I think companies respond like this when they’re blindsided. This app has been around for a while so they’re not even listening well to start with.
Yup, yup, yup.
Matt’s right that they should be glad that Scrabulous is reviving their brand- I bet they sell more Scrabble games because of it.
Not sure what the upside of building their own app is, unless they can find a way to monetize it. Cheaper and easier to let someone else build and run this free app.
EXCEPT (and here’s where the lawyers come it) someone does something silly with Scrabulous and somehow the Scrabble brand is tainted.
But that’s a real long shot.
Matt, excellent post.
I agree with most of what you say. The marketing teams need to embrace this as an opportunity, and instead they are being overrun by the attorneys. Yes, there are complexities around the law, but the question is …. who is going to drive this …. marketing or legal?
I get really upset when marketing takes a back seat (I’ve blogged a lot about this). Just because you have to defend a copyright infringement doesn’t mean marketing can’t define exactly how that is going to take place!
For example, you send them a cease and desist letter, and then you call them and negotiate with them about one of the many great ideas Matt has put forth. If legal drives the discussion, the discussion becomes about shutting them down. If marketing drives the discussion, the discussion becomes about how we can work with them to create a win-win.
Legal can do their job and marketing can drive the strategy. Marketing need to take the lead!
The Copyright issue is rather boring. Companies are trying to squeeze old model into a completely different world and the Web is far too complicated for the legal office.
Matt you’re exactly right, they need to buy this app. I’ve never played it, but I know from spending time on Facebook and Twitter that this is the FB app that the most people are talking about. Mattel/Hasbro could easily buy this and add the Scrabble logo and I’m sure that sales of the board game version would take off even more.
This is the same issue that the music industry has been facing for the last decade. There’s the need to protect your rights online, versus letting go when others are expanding your brand’s reach and customer base.
So we all get that legal is important. But that simply doesn’t change the fact that customers hate legal and the whole copyright issue. Seems like it would be a better move to make 600,000+ people love scrabble more by aligning with them, as opposed to ticking them off.
Yes, they have the right to enforce copyright, but does that mean it’s their best move? I don’t think so.
The companies need to learn a lesson from the major record labels and stop fighting with their own evangelists before they’re out of business.
Wait, did I miss the 4th action step? :-p
I think your action points are great. I know even as I have been working with a newer company producing a new internet product, I am still the voice of reason at the table in these type of situations. Somehow the concept of sharing and collaboration that was taught in pre-school has escaped people over all these years :-p Really, though. Is it so difficult to imagine working with people who really love your product?
Er, /ramble.
Actually this is less about copyright law as it is about trademark law.
Being a trademark if Mattel does not protect its trademark, it can lose it to competitors.
As with most corporate businesses many of the larger corporations are archaic and stodgy run by old men with no clue simply looking for the golden parachute and many still miss the whole point of the internet.
Id hire the makers of scrabulous in a nano second for that volume of traffic….
It gets even a little more complicated. Here is a recent registration for the scrabulous brand Word Mark SCRABULOUS
Goods and Services IC 041. US 100 101 107. G & S: Production of television and radio programs; television and radio entertainment services, namely, an ongoing television game show and an ongoing radio game show; production of television game show programs and radio entertainment programs
IC 028. US 022 023 038 050. G & S: Toys, playthings and games, namely, board games, party games and parlour games and equipment sold as a unit for playing such games; interactive games, namely board games, card games that may be played via a DVD machine, computer and television or computer monitor and equipment sold as a unit for playing board games and card games, in International Class 28
Standard Characters Claimed
Mark Drawing Code (4) STANDARD CHARACTER MARK
Serial Number 77304811
Filing Date October 16, 2007
Current Filing Basis 1B
Original Filing Basis 1B
Owner (APPLICANT) Imagination Holdings Pty Ltd CORPORATION AUSTRALIA 64 North Tce Kent Town AUSTRALIA 5067
Type of Mark TRADEMARK. SERVICE MARK
Register PRINCIPAL
Live/Dead Indicator LIVE
I am not sure it they have a leg to stand on since in the US it is first use not first to register. Anyhow it does not appear to me to be trademark infringement until it is tied to the scrabble game. I am not a lawyer this is just my opinion. I agree someone needs to hop on a plane and find out what the guys who created the app want in exchange for rights to use it with branded scrabbletm or figure out another way. It is usually cheaper to buy than fight over who has the rights