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News broke this week that viral online word game Wordle has been sold to The New York Times (NYT) for an undisclosed seven figure sum. The popularity of the free daily word puzzle has exploded in just a few months, after it started out as a way for creator Josh Wardle and his family to pass the time in lockdown.
The premise of the game is very simple: players have six guesses at a mystery five letter word. Guesses are transposed onto a grid, with the tiles of the grid changing colour to indicate that a letter is correct. Every day there is a new word to guess, and the word is the same for all players.
Given its simplicity and mass appeal, it is hardly surprising that the game seems to have already inspired a host of similar apps. As the NYT seeks to recoup its investment, it will likely want to prevent copycats however it can. What control, if any, can the NYT expect to maintain over popular features of the game?
It is undeniable that the name Wordle now holds significant brand value in that many people now uniquely associate it with the game.
At the time of writing, a Google search for “wordle” yields more than 2.6 billion hits. Whilst these will not all relate to the game – the word was already in usage prior to being adopted as the name of the game – there are countless pages of press coverage and social media posts attesting to its renown.
However, in certain countries that renown alone will not be enough for the NYT to seek to monopolise the name Wordle. They may need to obtain a trade mark registration if they are to prevent others from using the same or similar names for related products, and avoid confusion with its game.
A quick search of a selection of publicly accessible trade mark registers reveals that the term is already the subject of a number of trade mark applications in the names of various applicants – with no obvious connection to Wardle or the NYT. The NYT may face a battle if they are to assert control over the name internationally.
It is very likely that the NYT has acquired the collection of code that underlies the game and controls its functionality. This will be protected by copyright. The NYT would be able to rely on that copyright to prevent third parties from copying and/or distributing the code on the basis the rights have passed to NYT. However, it will be limited in its ability to stop others from independently developing its own source code to produce a game with a similar functionality.
When it comes to functionality of games, it is worth considering patent protection. Patents can be used to protect the functionality of a new non-obvious technical solution to a technical problem. However, for the Wordle concept, given that the game has already been publicly disclosed, there may be difficulty in obtaining valid patent protection at least for the reason that it is not new. Any technical functionality which has not been publicly disclosed may be protectable through patents.
There may be a number of factors to consider when deciding whether to pursue patent protection for this type of software product. For example, what is the shelf life of the product? In some cases, it may be envisaged to be too short to warrant patent protection. However, if a monopoly is still thought to be of some commercial value then it should be noted that acceleration options do exist for patent applications.
Some countries such as the UK have exclusions from patentability and one of these exclusions is a method of playing a game. The game rules themselves for the Wordle type of software product will unlikely be patentable. The functionality of the underlying software used to implement the game may be patentable provided it solves a technical problem in a non-obvious way.
A patent attorney would likely explore the technical features of the system before advising whether to file a patent application for a new software product. For example, whether there is a novel and non-obvious way in which a large number of users are able to access and interact with the software without significant latency issues. According to online sources, the creator of the Wordle game has used a solution which does not require a complicated back end set up. Instead, some software code is downloaded when the web application is accessed and this enables the game to be played the game without requiring continuous interaction with a back end hosted by the creator.
It will be very difficult for the NYT to seek to assert a monopoly over the essential format of the game – i.e. a grid with tiles that are populated with letters. The appearance of the whole or a part of a graphical user interface can in principle be protected as a design. However, the design will need to exhibit novelty and individual character which, in the case of Wordle, may be difficult to demonstrate given that the grid has a plain appearance, and the use of grids, particularly in games, is not new.
It remains to be seen how the NYT will seek to capitalise on its investment and whether the popularity of the game will endure, but the NYT it is planning for Wordle to be a long-term fixture in its games portfolio, it will be undoubtedly seeking to navigate some of the above issues. In the meantime, keep those streaks going!
If you’d like to discuss any topic in this article you can contact the writers, Suzanne or Nikesh, or another of our IP experts.
Category: Latest Insights | Author: Nikesh Patel, Suzanne Power | Published: | Read more
