Scrabble argued that the use of the word Scramble, and the presentation of the word in the game’s logo, with the ‘M’ turned on its side so as to look like a capital letter B, would cause game players to confuse it with their own name, and therefore assume the two games were associated.

They brought an action against the makers of Scramble for trademark infringement and for passing off.

Scramble claimed that the Scrabble logo was simply the word written out, and so had no distinctive features that could be mimicked with the intention of deceiving consumers.

The judge said that for passing off, there had to be a likelihood of deception and a substantial number of people would have to be deceived.

On this basis, he ruled in favour of Scramble because Scrabble had failed to produce any evidence that proved consumers were being misled.

Scrabble had provided two consumer surveys, but they were considered unsatisfactory in terms of evidence. The data was compiled by the people administering the questions, and therefore was not necessarily an accurate reflection of consumer moods.

Scrabble’s case was weakened further by the fact that they had attempted to gain a licence to make a board game version of the Scramble game in the past. They had also not objected to Scramble’s previous four versions of the game; only on the fifth version did Scrabble take action.

The judge ruled that Scramble did not infringe the Scrabble trademark and did not amount to passing off because it was neither similar nor likely to cause confusion. However, he agreed that the tilted letter M in the Scramble logo did infringe Scrabble’s trademark so its manufacturers succeeded on that one single point.

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