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Scramble v Scrabble - a surprising lack of confusion?

1 April 2015

The Court of Appeal case between Mattel and Zynga has confirmed that Mattel’s ‘Scramble’ CTM was valid and not descriptive of what was required in the game or in common usage for word games and therefore that Zynga’s use of ‘Scramble’ infringed it.

LJ Floyd held that the similarity between the marks ‘Scramble’ and ‘Scrabble’ was obvious, in contrast to the High Court. However, the degree of similarity was deemed insufficient to give rise to a likelihood of confusion, even taking into account the reputation of the ‘Scrabble’ mark.

This is a decision which generally brings the law back to the status quo, following the Specsavers decision. Mattel argued that the decision in Specsavers should allow the court to take into account that tiles, background and scores were used in combination with the ‘Scrabble’ mark. Floyd rejected this, confirming Specsavers only permitted the court to consider the colour combination in assessing likelihood of confusion, not the wider context of the mark’s use (i.e. the tiles and scores).

Although Mattel won this case on the facts, the conclusion that ‘Scramble’ and ‘Scrabble’ did not give rise to a likelihood of confusion may well be unsatisfactory to it.

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