Wake up marketers!

Some days I don't know whether to laugh or cry. I was just running through my feeds at lunch and I came across this post from Shel Israel. It seems that Mattel and Hasbro have issued a take down order on the popular Facebook application Scrabulous due to trademark infringment. As of this post there are 600,563 active users of the application.

Clearly this is a trademark violation, but just look at the reach that this single application is having. There has to be a balance between legal and marketing in order to thrive in new media. Personally, I never really thought about Scrabble until I saw the flood of invites and blog posts and messages on Twitter about this little applicaiton. Personally I don't own the real world game, but I know people who did buy it after this Facebook app reinvigorated their passion for it.

If I were in Mattel's marketing department here is what my train of thinking would be here:

1. Somebody please kick the legal department out of the room. Thanks, now let's continue.
2. Wow! These guys built an awesome application around our brand
3. We NEED to talk to them and buy this application ASAP
4. We NEED to hire these guys (or at least retain them) to do updates and possibly roll this out to other networks (Bebo, MySpace, etc.)
5. Seriously guys, keep those lawyers out of here! Just tell them somebody in accounting is using the wrong Pantone color in the logo again.
6. If we can't buy it, we at least need to sponsor/co-present it as *the* official Scrabble game on Facebook
7. If none of those options work we need to congratulate those guys publicly for their efforts and encourage people to join in
8. I wonder why we didn't think of this.

I think way too much marketing decision making is done by zealous, old-school, out-of-touch marketers or the legal department. I've personally run into legal departments that have the marketing group so fearful that the lawyers start making branding/positioning decisions for the company. That's a very scary idea in my mind.

Any marketer out there should be looking at all of the options inside social networks like this. Look at these four actions steps to get the most value:

1. Creation: build the application, group, etc. that fits your business goals and adds value to your customers.
2. Acquisition: If you're late to the party you should look at what is out there and set some acquisition targets. Look for those people adding the most value even if they don't have the most traction.
3. Collaboration: If you can't/won't build it and somebody else has, look for ways to collaborate with them. Support them in ways that bring value to the users.

Have you seen any other examples of marketers making snap judgements and persecuting their biggest fans? Social media is about supporting evangelists, not crushing them in a public display of force.

Comments

[Todd Defren]

Another example:
http://www.pr-squared.com/2008/01/the_unbearable_idiocy_of_brand.html

[Cam Beck]

Matt - You had me cheering from my computer talking about keeping legal out of the room.

Don't get me wrong, though - Lawyers are great when you actually need one... I just think we need them a lot less than they think we do.

[Marshall Kirkpatrick]

Awesome take on this and well articulated. I didn't think much of it when I saw the news but you explain well what a backasswards decision this was. Talk about turning opportunity into a problem!

[Tim Walker]

Matt -- This is working totally from memory, but I recall that a few years ago the Los Angeles Dodgers shut down the fan blog of a SUPER-dedicated Dodgers fan, saying it infringed on Dodgers trademarks, etc. The site was one big homage to the Dodgers . . . and they shut it down, when they could have been sending goodies (tickets? press passes? caps? pennants? whatever!) to the blogger. Short-sighted in the extreme - treating as criminal a person who was hand-selling their brand to everyone she possibly could.

[Tamera Kremer]

Great post and good ideas for what Hasbro/Mattel should have done. I was just having a conversation yesterday about lawyers making copy changes that have nothing to do with legalities and instead are marketing focused. Does every lawyer secretly wish they were a creative?

[Connie Reece]

Playing Scrabulous on Facebook has renewed my love of a game I hadn't played in years. Hasbro should buy ad space on Scrabulous and offer a downloadable coupon for the original board game. Geoff Livingston and I had been playing online before we met at BlogOrlando. We decided we were too tired to party with the group afterward, so Geoff went and bought a Scrabble game. We sat at Starbucks playing until they closed the doors, then we left the game there for someone else to enjoy. We plan on doing that at every conference we're at this year. Send me that coupon, Hasbro!

[Chris Brogan...]

This was excellent! I love your advice and I think you've nailed it spot on. I hope they get your message, but then again, what evidence do we have that THAT would happen?

Cool!

[Shel Holtz]

I don't disagree with you, and I've been surprised almost daily that Hasbro (the US/Canada owner of Scrabble) hasn't bought or otherwise affiliated themselves with the app. But, having served as Mattel's director of corporate communications in the mid-1980s, I can tell you that the legal department simply rules the roost when it comes to stuff like this. The rationale (and I'm NOT saying I agree with it) is that letting one of these instances slide opens the door for more egregious violations. You take someone to court for a legitimate copyright violation, and they can point to Scrabulous and say, "Why did they let that slide? They haven't made a legitimate effort to protect their trademark, so my infrimgement is fair game." The courts recognize this as a legitimate defense...at least, in the U.S.

So it's more than the lawyers who need to change. The law also needs to catch up to the 21st century. Sadly, that doesn't happen overnight.

[Ontario Emperor]

OK, this isn't strictly a social media story, and I've only seen it from one source, but this is even worse than Scrabulous. A Mustang car club wanted to use Cafepress to print their calendar, along with pictures of members' Mustangs, but CafePress was apparently contacted by a Ford lawyer who (according to the story) pretty much said that Ford's trademark protection prohibited Mustang owners from selling pictures of THEIR OWN vehicles. It's one thing to anger Facebook users, but when you anger members of a car club, that's just not right...

[Matt Dickman]

Wow! You guys rule!

Cam -- I agree that legal is necessary, but they should be as involved in marketing as marketers are in writing legal briefs.

Marshall -- Thanks for that comment and the compliment.

Tim -- I think it's hard to see evangelists when you're looking for criminals. This is a shift in mindset from control to community and from brand ownership to brand collaboration. It's going to certainly take some companies a very long time to get there (if ever).

Tamera -- Thanks for the comment and welcome! A symbiotic relationship between marketing and legal is the ideal. Both parties probably have the opinion they could do each other's job.

Connie -- That's a fantastic story and one that they're missing out on in taking this action. Why not leverage the existing community and build on it to drive more sales offline? This could only hurt their sales.

Chris -- It'll be interesting to see if they get the message and how they respond.

Shel -- Thank you for the comment, that's some fantastic insight. I agree that the law needs to catch up quickly or there will just be more and more of this taking place. There certainly are legal risks in letting it go, but also risks to the community and profits for taking this stance. Time will tell I guess.

Ontario -- I also saw that Mustang story. It seems like a lot of companies are completely caught off-guard on this issue and the immediate reaction is "sue them" or "cease and desist". I think every company could due well to have a plan in place "when evangelists attack". Hey, that could be the name of a TV special on the WB.

[Marc]

I could not agree more with you.

It's just like music. Taking the "court way" rather than the creative one is just stupid, pointless, a waste of money and shows a deep disconnection from what the world has become.

[Mario Vellandi]

I see Scrabble groups at my local Borders once a week. If there's some way to bring this online activity within Mattel, it'd be a great brand extension and perhaps a new road to build something better down the road. Video, online, and mobile games are big business. I would consider Scrabulous as a free/basic version of a larger/premium offering Mattel could establish.
Which makes me wonder, can many of our traditional board games with strong brand names be taken online? The development tools and labor are cheaper than before.
Your thoughts?

[Doug Meacham]

Great post Matt! I was going to write about this today, but I think you've summed it up beautifully.

[Matt Dickman]

Marc -- There are always other options besides litigation. This is a classic case of litigation vs. innovation. Sadly the former usually wins.

Mario -- I think Mattel has to be partly mad that they didn't come up with this themselves. To your question, I think the interaction on a computer/mobile allows for so many more options than a board game ever had. I love the tie ins with DVD (SceneIt, etc.) and I think that's more the future of gaming.

Doug -- Glad you liked the post!

[Mar]

Hasbro also has tried to shut down a boggle-like application on facebook much to the chagrin of its 40,000 + users. The comments surrounding this have echoed the scrabble comments in that many people went out and bought the game after renewing or beginning their interest in it on facebook. What hasbro fails to realize is that many people prefer to play online because they often lack real people to play the actual board game with.
I personally chose to play online because I have small children in the house and playing actual board games while they are awake would be sheer lunacy! The game tiles wind up everywhere and lord knows they would try to eat one. Hasbro needs to get it that real world people are online and that, like the music industry and many others, they need to embrace technology and not try to crush it or pretend like it will just go away.

[Hannes]

Four action steps? I only count three ;)

Cool post - this is similar to the TV networks taking down 1-3 minute clips off YouTube that are getting thousands of views each day - they don't get that it's just free publicity for them that could encourage a lot more people to watch the whole show or buy it on DVD.

[Matt Dickman]

Mar -- Thank you for pointing out the Boggle example. I am seeing quite a bit of traffic from the fan group on Facebook so I can tell people are equally passionate. I love the point you make about playing games like this online. There is a constant volume of folks you can play against where it doesn't exist offline.

Hannes -- Thanks for finding that typo ;) It's very similar to what the networks did. Still to this day I have not seen a Daily Show clip after they forced YouTube to remove them.

[AXNJXN]

This isn't the first time Hasbro has bungled this opportunity. There was a gaming site that built a Scrabble game online and the experience was amazing and it drew thousands of players that could play others all over the world. It also kept your rankings, etc. They did a cease and desist on them as well. What morons. They need to get with the 21st century.

[Simon]

Hi it is worth checking out the www.trendpedia.com buzz around this. It went from a few posts every day to big spike with mainly negative commentary...

[Jay Ehret]

I understand and agree with most of what you're saying, Matt. But does anybody think that it might have been wise of the creators of Scrabulous to contact Mattel and Hasbro before they infringed on the trademark? Did they even attempt to communicate?

It's easy to criticize the big company, but the Scrabulous folks have responsibility here, too.

[Carrie]

Hi Matt,

I don't completely disagree with you, but don't you think Hasbro has a right to be pissed? I wrote a response on my blog: www.buzzmarketingdaily.com

Love your blog, ps!