The Scrabble Case: Likely To Cause Confusion?

A recent UK court decision involving the trade mark Scrabble is of interest to us in South Africa because it suggests that proof of actual confusion - as opposed to a mere likelihood of confusion - is more important than we sometimes like to think.

I refer to a decision of the UK Court of Appeal in the case of JW Spear & Sons Ltd v Zynga.The facts were that JW Spear (part of the Mattel group) has trade mark registrations for the words Scramble and Scrabble – both registrations cover board games as well as electronic games. Mattel claimed that its trade mark registrations had been infringed by electronic games giant Zynga, which used, in relation to a game not dissimilar to Scrabble, the trade mark Scramble, as well as a logo trade mark comprising the phrase Scramble With Friends, in which the letter 'm' of the word 'Scramble' was highly stylised and arguably looked a bit like a letter 'b' on its side.