Hasbro Sues Scrabulous For Making Scrabble Popular Again

from the don't-you-ever-do-that-again dept

For months, Hasbro and Mattel had been threatening the makers of Scrabulous with a lawsuit for daring to do what the gaming companies had been unwilling to do: make a fun version of Scrabble available on Facebook in a way that got many people playing the game on a regular basis. It took nearly 9 months, but Hasbro finally put a version of Scrabble on Facebook itself, and now that it's up has finally officially filed the lawsuit.

It's rather telling that Hasbro waited until its own version was online to file the lawsuit. What the company is basically admitting is that Scrabulous was a great promotional vehicle for Scrabble (otherwise why leave it up?), but now that Hasbro is competing with Scrabulous online, it wants to cut out that competition. Hasbro's General Counsel is being quite misleading in saying: "Hasbro has an obligation to act appropriately against infringement of our intellectual properties." That's not quite true. There is no "obligation" to sue someone who made your game popular again just because you were late to the game.

Scrabulous showed Hasbro that there was a huge market for their game. There was no indication that Hasbro had any interest in Scrabble for Facebook prior to Scrabulous' success.

Then there's this bizarre quote from Hasbro's GM of digital initiatives: "Hasbro has always had the same two priorities. One is to offer a great playing authentic game for fans and the second is to protect our intellectual property. This was theft of I.P., plain and simple." Really? Your second biggest priority is to protect your IP? Then why did you wait all this time to sue? Clearly there was a benefit in leaving Scrabulous up while your own version was being developed. Clearly the comparison to "theft" is incorrect. No one would let "theft" go on for months on end before suing, just so they could create their own competitive offering.

The Scrabulous/Hasbro situation is a perfect example of Matt Mason's thesis that "piracy" is almost never about "theft." It's almost always a market indicator that the market is unhappy with what's being offered. It's the market showing companies what they want.


Reader Comments (rss)

(Flattened / Threaded)

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    Beefcake, Jul 24th, 2008 @ 1:59pm

    They even said they're after the free marketing

    From the AP article about this found on msnbc, unedited:

    Now, Hasbro is trying to stop Scrabulous completely and collect unspecified damages.

    Mark Blecher, general manager for digital media and gaming at Hasbro, said the Pawtucket, R.I.-based company waited until Thursday to file a lawsuit to ensure that Scrabble fans had a legal option first.

    http://www.msnbc.msn.com/id/25836583/

    (Sorry if you have to pay AP now, Mike & Co, but I believe this qualifies as fair use.)

    But I love how one sentence about suing and collecting a party for damages is followed immediately by the admission that they used that party to keep the momentum and interest up.

    Pretty sleazy. Perhaps Scrabulous should countersue.

     

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    Willton, Jul 24th, 2008 @ 2:35pm

    Scrabulous could have easily avoided this ...

    ... by calling their game something else.

     

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    Will, Jul 24th, 2008 @ 2:38pm

    I play

    Scrabulous alot of the time. It is alot of fun. I'd hate to see it get removed because Hasbro was too stupid to turn "their" games into online flash versions.

     

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    Freedom, Jul 24th, 2008 @ 2:45pm

    What a waste of resources...

    I'm sure the devil is in the details, but what a shame to actually waste your time making another version. A version was up and popular, why not just buy them out. I can't believe that a reasonable agreement couldn't be had and everyone walks away happy. Hell, hire these guys on board to turn all your games online ...

    Sounds like emotions got too involved in this issue.

    Freedom

     

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    Joseph Weisenthal, Jul 24th, 2008 @ 2:54pm

    Normally I'd say this type of thing is just dumb, but I'm a little sympathetic to Hasbro for a couple reasons on this one.

    1)Trademark complaints are fairly legitimate compared to some other IP issues that get discussed here. And the name Scrabulous is clearly derivative, and arguably confusing to anyone, especially morons on the run.

    2)I think the company has been pretty forthright about why they didn't try to get it shutdown earlier -- they didn't want to leave users totally in the lurch, and they've said as such.

    3)Yes, Scrabulous showed the Hasbro there's demand for Facebook-based Scrabble. That's why they introduced it themselves, so they're acknowledging the point you made.

    4)As for them having an "obligation" they're probably referring to an obligation to shareholders. If they think they stand to lose out in the longrun by turning a blind eye apps that play on their trademark -- and that's not such a ludicrous notion, because Scrabble is just one of their games with an identifiable name -- then they do have an obligation to deal with it.

    All that being said, it would've been better for them to solve the problem without taking this nuclear option

     

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      PaulT (profile), Jul 25th, 2008 @ 5:10am

      Re:

      "2)I think the company has been pretty forthright about why they didn't try to get it shutdown earlier -- they didn't want to leave users totally in the lurch, and they've said as such."

      That's the issue here, really. They're suing Scrabulous for copyright infringement - i.e. they're claiming that the existence of Scrabulous caused Hasbro losses that need to be recovered.

      Yet, all Scrabulous did was to fill a hole in the market. They recognised that there was a demand for a Facebook app based on Scrabble. Hasbro weren't bothered about doing the same until Scrabulous demonstrated that there was such a demand. Then, they allow Scrabulous to stay online to keep the users happy - the users that Hasbro will now steal.

      So far, there's no damage done. Hasbro's game had been made extremely valuable in a space where they originally had no intent to enter. Now that the free advertising and free community building has been done, they're now using lawsuits to shut down the competition and reap the rewards.

      You can argue all you want about the other issues, but this one seems very wrong...

       

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    Brian, Jul 24th, 2008 @ 3:15pm

    Do timelines matter?

    The timeline of when Hasbro has sued Scrabulous doesn't change the legality of what Scrabulous is doing. It's pretty obvious that Scrabulous directly ripped off the Scrabble game. And whether Hasbro sued them months ago, or now - Scrabulous is still infringing on their intellectual property.

    Scrabulous should be happy they got to make their few extra months of revenue before being shut down.

    Oh, and this is coming from someone who likes playing Scrabulous. I hope Hasbro's version incorporates the same features. I'm sure I'll play it when Scrabulous comes down.

     

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    Nick Kellet, Jul 24th, 2008 @ 3:16pm

    I have two questions

    Why hasn't Scrabulous diversified their apps portfolio?

    What about the other illegal board games on Facebook?

    As an independent board game publisher ( http://www.gifttrap.com/ ) I've noticed there are very few real physical "board game" apps on Facebook and if the games exist they are by small companies just like Scrabulous, ie copies.

    It includes Othello, Trivial Pursuit, Connect Four, Risk, Diplomacy, Pictionary, Blokus, Boggle. Here’s a full list;

    http://boardgamegeek.com/geeklist/31999/item/671822#item671822

    (You may need to be a member to see this, but I've connected all the main board games to their Facebook apps)

    The likes of Mattel and Hasbro have just missed the whole social thing, until someone made it successful.

    I publish a board game called GiftTRAP that's voted "best party game" by Games Magazine and Creative Child Magazine. I'd got crazy for this much exposure.

    Right now I'd be delighted if someone has been promoting my game to the extent Scrabulous has promoted Scrabble.

    Isnt’ Scrabulous just a better Mouse Trap – they didn’t copy an online version as Scrabble didn’t have one. There were other copies too and I bet they aren’t being sued.

    To promote GiftTRAP, we’ve led the way by creating a Facebook app in the vein of Free Gifts, but getting your social app moving is no mean feat. Hasbro has only managed 10k users with al the noise on the web about Scrabulous.

    Our game precedes Free Gifts, but you can’t fight the viral nature and you’ve got to be first on the right platform.

    If you are interested in Facebook apps check out;

    http://apps.new.facebook.com/gifttrap/

    Unlike the Free Gifts app your friend gets to choose their own gift, the question is will you match. We have turned virtual gifts into a game.

    The GiftTRAP board game is on sale in Barnes and Noble right now which is pretty cool (no doubt next to Scrabble). I'm just a few million copies behind them! Ah well we are doing well in the real world.

    The fact that Scrabulous is successful I guess gave Hasbro and Mattel no other option than to sue or at least go through the motions to create yet more conversations and drive more sales in store!

    What’s hard to swallow is no doubt Scrabulous has reinvigorated sales for Scrabble. What would they have paid a PR company to generate this much noise?

    I'm amazed a deal hasn't been done for undisclosed sum. The problem is the Scrabulous traffic as calculated on http://adonomics.com/ is worth at $2.7m

    Now those figures are inflated, but it must make it hard to accept a deal from Hasbro or Mattel when you read about these sorts of numbers.

    The split ownership must also make it much harder for them to do a deal.

    What's surprised me most is that Scrabulous haven't added to their apps portfolio while they can.

     

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    Devils Advocate, Jul 24th, 2008 @ 3:28pm

    Though Suing Seems Like the Wrong Idea

    There is no "obligation" to sue someone who made your game popular again just because you were late to the game.
    First of all, IANAL - but I did take a few law classes (let the 'that doesn't qualify you to make statements like this' raving begin). What I did learn about these types of lawsuits, is there IS an obligation. If the copyright holder does not sue, it weakens the copyright and someone else could come along and do the same because there was a precedent. Of course, what should happen here is that Hasboro should license the game to Scrabulous on some certain terms. Then, everyone is happy, no need to sue. If Scrabulous declines the offer to license the game, then sue their pants off.

     

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      Beefcake, Jul 24th, 2008 @ 3:38pm

      Re: Though Suing Seems Like the Wrong Idea

      I don't think this is a copyright issue, but a trademark issue. I think I read somewhere (it might have been here) that you can't copyright a board game, only trademark the name and design elements (such as the (board, tiles, cards, etc). While the trademarks do need to be actively protected, I'm not as sure as #6 that the name is a trademark infraction either. Maybe he knows dumber morons than I do.

       

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        nonuser, Jul 24th, 2008 @ 8:56pm

        Re: Re: Though Suing Seems Like the Wrong Idea

        It seems like it's both a copyright and a trademark issue - the trademark being the Scrabble name, while the copyright would be the gameplay, the board layout, the values of the individual tiles, bonus structure, etc. From the screenshot, Scrabulous looks like an online clone of the board game. I'd say Hasbro has a strong case, except for the part where they may have waited too long to sue. That *is* Scrabble.

        Now, it would be more interesting if somebody came up with a crossword puzzle-based game based on Scrabble, but with a completely different name, board layout, tile values, etc. Would Hasbro still have the upper hand if it sued? Now we're talking about something very similar to Scrabble, but definitely not Scrabble. Any Scrabble player would recognize immediately that it's different.

         

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        Willton, Jul 24th, 2008 @ 9:39pm

        Re: Re: Though Suing Seems Like the Wrong Idea

        I don't think this is a copyright issue, but a trademark issue. I think I read somewhere (it might have been here) that you can't copyright a board game, only trademark the name and design elements (such as the (board, tiles, cards, etc).

        No, you can copyright the picture of the board. It's a very thin copyright that's easy to get around, as all one needs to do is change the aesthetics of the board, but it's copyrightable subject matter nonetheless.

        While the trademarks do need to be actively protected, I'm not as sure as #6 that the name is a trademark infraction either. Maybe he knows dumber morons than I do.

        Oh come on. When you first learned of the game's name, can you honestly say with a straight face that you did not immediately think of Scrabble? Further, when the designers of the game decided to name their game, why would they name the game "Scrabulous" if they did not want to invoke the game "Scrabble" in people's minds? Do you think this game would have garnered as much attention from Facebook users as quickly as it did if it was merely called "Word Game"?

        This is a clear case of unfair competition. The makers of Scrabulous appropriated the goodwill of Scrabble by giving the game a confusingly similar name. Sure, they made a hugely popular game and should be commended for that, but they rode on the coattails of Hasbro in order to do it.

         

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          Mike (profile), Jul 24th, 2008 @ 10:45pm

          Re: Re: Re: Though Suing Seems Like the Wrong Idea

          Oh come on. When you first learned of the game's name, can you honestly say with a straight face that you did not immediately think of Scrabble?

          But were they confused into thinking that it was made by Hasbro? If it was clear the game was an unofficial version, then one could argue that there was no confusion.

          The makers of Scrabulous appropriated the goodwill of Scrabble by giving the game a confusingly similar name. Sure, they made a hugely popular game and should be commended for that, but they rode on the coattails of Hasbro in order to do it.

          I'd argue the opposite is true. Hasbro is now riding on the coattails of Scrabulous in order to establish their game. They let Scarbulous do all the hard work of building up an online audience and are now trying to force them out of the market.

          Let's recall that Hasbro had plenty of opportunities in the past to do this themselves, and chose not to. I think Scarbulous is much more of trail blazer here, whereas Hasbro is trying to ride on Scrabulous' coattails.

           

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            Willton, Jul 25th, 2008 @ 6:46am

            Re: Re: Re: Re: Though Suing Seems Like the Wrong Idea

            But were they confused into thinking that it was made by Hasbro? If it was clear the game was an unofficial version, then one could argue that there was no confusion.

            You could argue that, but the law does not require actual confusion. The law only requires likelihood of confusion. And I'd find it hard to believe that even a reasonable person (a higher threshhold than the law requires) would not be confused for at least a second that it came from the same source, unofficial tag or no.

            I'd argue the opposite is true. Hasbro is now riding on the coattails of Scrabulous in order to establish their game. They let Scarbulous do all the hard work of building up an online audience and are now trying to force them out of the market.

            Maybe now, but at the inception of Scrabulous, its makers latched onto Scrabble's good will. Whatever hard work the makers of Scrabulous did to build its audience would have been much greater had they chose to use a different name. They chose a name similar to Scrabble to make their work easier. That's a clear case of passing off.

            Besides, showing how Scrabulous is now helping Hasbro is a damages argument, not a liability argument.

            Let's recall that Hasbro had plenty of opportunities in the past to do this themselves, and chose not to. I think Scarbulous is much more of trail blazer here, whereas Hasbro is trying to ride on Scrabulous' coattails.

            That's a laches argument, which could work at least to avoid a preliminary injunction, but it doesn't change the fact that the makers of Scrabulous got their start by using a name confusingly similar to Scrabble to garner the attention of its customers.

            Again, they could have easily used a different name and avoided all of this. They chose "Scrabulous." Why would one do that, other than to appropriate "Scrabble?"

             

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              Anonymous Coward, Jul 25th, 2008 @ 11:44am

              Re: Re: Re: Re: Re: Though Suing Seems Like the Wrong Idea

              The law only requires likelihood of confusion.
              And if such confusion has not occurred in this case then that is evidence that it is not likely.
              And I'd find it hard to believe that even a reasonable person (a higher threshhold than the law requires) would not be confused for at least a second that it came from the same source, unofficial tag or no.
              And I'd find the opposite hard to believe.

               

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                Willton, Jul 25th, 2008 @ 12:14pm

                Re: Re: Re: Re: Re: Re: Though Suing Seems Like the Wrong Idea

                And if such confusion has not occurred in this case then that is evidence that it is not likely.

                Good luck trying to prove that negative.

                 

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    Lucretious, Jul 24th, 2008 @ 3:31pm

    I can hear the whining of the scumbag attorneys now....."If YOU DON'T PROTECT IT YOU COULD LOSE IT!!....OH NOES!"

    Once again they contribute nothing of benefit to society.

     

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    Michael Long, Jul 24th, 2008 @ 3:36pm

    piracy" is almost never about "theft"

    "...that "piracy" is almost never about "theft." It's almost always a market indicator that the market is unhappy with what's being offered."

    I'm unhappy at the price of a BMW too, but that doesn't mean I can "steal" one. (Since you started the ball rolling with "theft".)

    Whatever the rationalization, the bottom line remains that the "market" is NOT automatically entitled to whatever it wants, whenever it wants, and at whatever price it's willing to pay (usually nothing).

    I find it odd that much is made of supposed corporate greed, and little of the greed of all of those that expect, nay, that demand something for nothing.

     

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      Tim, Jul 24th, 2008 @ 5:37pm

      Re: piracy" is almost never about "theft"

      No one is saying you should go steal a scrabble set though. To use your analogy, if a BMW is too expensive for you, or unavailable, there is a market for another company to make something that looks and feels like a BMW, but is cheaper and available in your area.

       

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      Anonymous Coward, Jul 24th, 2008 @ 6:00pm

      Re: piracy

      I'm unhappy at the price of a BMW too, but that doesn't mean I can "steal" one.
      More appropriately, if you have a BMW and your neighbor goes out and gets parts and builds a copy of yours, they have NOT "stolen" your BMW. You might not like it, but it's not theft. If you were to then call the police to report your BMW "stolen" by your neighbor they would probably charge you with a crime of false reporting when they found that your own BMW was still in your garage.
      Whatever the rationalization, the bottom line remains that the "market" is NOT automatically entitled to whatever it wants, whenever it wants, and at whatever price it's willing to pay (usually nothing).
      You don't know much about free market economics then. Supply and demand are exactly what set the price in a free market.
      I find it odd that much is made of supposed corporate greed, and little of the greed of all of those that expect, nay, that demand something for nothing.
      And you expect to be able to post your comments here for nothing? Greedy hypocrite.

       

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      Kiba, Jul 24th, 2008 @ 7:26pm

      Re: piracy" is almost never about "theft"

      How many time do we have to explain to you that copyright infringement is NOT THEFT?

      BTW, whatever moral whining you have is irrelevant to the market. The market decide who they want to reward and who's not to reward.

       

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      Mike (profile), Jul 24th, 2008 @ 8:07pm

      Re: piracy" is almost never about "theft"

      I'm unhappy at the price of a BMW too, but that doesn't mean I can "steal" one. (Since you started the ball rolling with "theft".)

      But you can go out and build your own car to sell. That's what's happening here.

      Whatever the rationalization, the bottom line remains that the "market" is NOT automatically entitled to whatever it wants, whenever it wants, and at whatever price it's willing to pay (usually nothing).

      Hmm. Well, you're saying a few things here. No one said the market is "entitled" to what it wants, but history shows that the market does get what it wants in the end, and that's because if the market wants something, it will be profitable to offer it.

      That's all we're saying here. You seem to be implying something different that is not supported by history.

      I find it odd that much is made of supposed corporate greed, and little of the greed of all of those that expect, nay, that demand something for nothing.

      Who's demanding something for nothing here?

       

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    Anon., Jul 24th, 2008 @ 6:35pm

    This one is a trademark case, and a reasonable if questionable one.

    It's startling that Scrabulous didn't just change their name; Scrabble the game is uncopyrightable, its rules (which are) can be paraphrased, and its patents expired decades ago.

     

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    Shit in one hand and a wish in the other, Jul 24th, 2008 @ 7:08pm

    Simple Problem, simple solution

    Simple answer- Don't buy Hasbro or Mattel products until they kick the power hungry attorneys out of the boardroom.

    If they want their precious, precious games, that's fine.

    When I'm in the office and have 15 minutes of freetime, it makes perfect sense to break out a board game to play with co-workers anyway. It's SOOO much easier than playing online.

    I noticed dust on the board games last time I was at WalMart. They possibly haven't been picked up since Christmas season!

     

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    Cygnus, Jul 25th, 2008 @ 7:57am

    "It's rather telling that Hasbro waited until its own version was online to file the lawsuit. What the company is basically admitting is that Scrabulous was a great promotional vehicle for Scrabble (otherwise why leave it up?), but now that Hasbro is competing with Scrabulous online, it wants to cut out that competition."

    Mike, you are the master of inventing facts.

     

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    pulsar, Jul 25th, 2008 @ 9:04am

    holy crap in pants, batman!

    holy toledo! could hasbro have been more obvious???
    i guess only if they had all the dictionaries change the definition of "THANK YOU for making our game accessible, fun, and creating a new, refreshed market for word-lovers of all ages who just might go out and buy one" into ----> "LAWSUIT"!!

    i mean, this is so obvious with the timing and everything...thanks for pointing this out. I mean, IP/copyright/trademark be damned, the bottom line here is that i see people getting excited in coffee shops, cafes, and in the "parlors" of homes about a game that is super-old. how ridiculous that now they are competing, they go in for the kill.

    excellent work at pointing this out mike! i think you give the facts like they are and let ME fill in my own reasoning, i like that!

     

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      Willton, Jul 25th, 2008 @ 9:13am

      Re: holy crap in pants, batman!

      excellent work at pointing this out mike! i think you give the facts like they are and let ME fill in my own reasoning, i like that!

      Excuse me? You think Mike does not inject his own reasoning into his posts? Have you been reading his stuff lately?

      Based on your post, it seems like you bought Mike's reasoning hook, line, and sinker, regardless of whether it's correct.

       

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    pulsar, Jul 28th, 2008 @ 12:43pm

    Re: Re: holy crap in pants, batman!

    i just happen to agree in this case. that last part was for mike's benefit in general for his work here. i don't post comments that much, so i just wanted to give him kudos in general.

    i wish you had put some of your reasoning into it though. from hasbro's actions though, the timing seems to substantiate the fairly obvious line of reasoning mike follows in his blurb.

     

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    Spring, Jul 31st, 2008 @ 12:57pm

    scrabble

    I think Hasbro was a little to late on their scrabble game.
    You have to be stupid not to put a game like this on the interent. Hello but everything is done on the interent .... With all your smarts on the game itself- duh
    you did not think of this? In my judgement scrabulous has done nothing wrong, just making a good game available for people to play and I love it better than your scrabble so there.

     

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    Jesus Christ, Jun 18th, 2009 @ 10:54am

    Scrabulous and Scrabble are different names.

    Scrabulous is a different name than Scrabble. stfu?

    If anything they ripped off the word 'fabulous', I see no connection, and I could be president of the USA lol. Hasbro's just whining because someone else is, though making no money, successfully deploying a game for the Facebook users to enjoy.

    And fuck hasbro anyways. " 'Our' intellectual property " ? They stole the game to begin with. Maybe the hasbro cunts trademarked 'fabulous', too though...

     

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    دردرشة, Jul 5th, 2009 @ 3:03pm

    you did not think of this? In my judgement scrabulous has done nothing wrong, just making a good game available for people to play and I love it better than your scrabble so there

     

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    دردشة, Jul 5th, 2009 @ 3:03pm

    you did not think of this? In my judgement scrabulous has done nothing wrong, just making a good game available for people to play and I love it better than your scrabble so there

     

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