The Court of Appeal has recently concluded that the ‘SCRAMBLE’ mark registered by Mattel (who control the rights in the popular game ‘Scrabble’) was infringed by Zynga’s use of ‘SCRAMBLE’ and ‘SCRAMBLE WITH FRIENDS’ in its electronic word game.
In contrast to the decision of the High Court, the Court of Appeal considered ‘SCRAMBLE’ was a valid trade mark (despite there being a degree of ‘descriptive allusion’ in the mark) and therefore the infringement by Zynga was straightforward.
In relation to Mattel’s ‘SCRABBLE’ mark, the Court of Appeal did not consider there was a likelihood of confusion arising from Zynga’s use of ‘SCRAMBLE’ and ‘SCRAMBLE WITH FRIENDS’, taking into account the evidence of use provided by the parties.
Interestingly the parties provided extensive material from social media platform, Twitter and reviews from iTunes to evidence the use of the trade marks. The Court of Appeal judges criticised the High Court judge’s refusal to place any reliance on this secondary evidence as it was “material of some value, being unsolicited, and the judge was wrong not to consider it.” This highlights the Court’s increasing willingness to take into account information from social media platforms and online reviews when carrying out its assessment of confusion.