Humans love word puzzles. Three out of every five American homes include a SCRABBLE game. More than eight million people watch Wheel of Fortune every night. And lately, Wordle has been taking the world by storm.
Wordle began as a website-based game created by Josh Wardle, a Brooklyn, NY-based software engineer. The purpose of the game is to guess a particular five-letter word within six guesses while using hints from previous guesses. Although a simple idea that resembles the games of Hangman, Lingo, and Jotto, words like "knoll" have tripped up millions of people.
Wardle created the game in October 2021 for his partner who avidly loved word games. It was initially released on November 1, 2021 and has exponentially grown in popularity since. Wordle became so popular that it was recently purchased by The New York Times for a price tag in the low-seven figures. Wardle was neither the first nor the last to use the title of "Wordle" for a word game. As of February 3, 2022, at least two iOS apps that predate Wardle’s game by several years use “Wordle" as the app title. Further, several new apps that mirror Wordle’s gameplay and use a similar name have appeared in the Apple App Store and Google Play Store.
Notably, Wardle did not file a federal trademark application to protect the name of his game. In the United States, a trademark is a word, phrase, or logo that identifies the source of goods or services. It can be obtained by registering your mark with the United States Patent and Trademark Office (USPTO) or by using your mark in commerce and obtaining common law rights. Thus, if Wardle obtained a trademark for WORDLE, he may be able to prevent others from also using WORDLE in a similar word game. Of course, if others started using the mark in connection with similar goods or services before Wardle, his rights might be significantly limited or non-existent.
On January 7, 2022, Monkey Labs Inc. filed a word mark application for WORDLE and on January 12, 2022, Super Free Games, Inc. filed a word mark application for WORDLE UNLIMITED. Both trademark applications relate to downloadable computer and electronic game programs, but there is no indication that Monkey Labs or Super Free Games is associated with Wardle.
Without federal protection, WORDLE may enjoy common law trademark protection, but that only protects against copycats within the state where the mark has been adequately marketed and used. This may be difficult to prove for WORDLE, as it is unclear where its geographic domain is because the geographic domain of internet websites is still a largely unsettled area of law.
Thus, Wardle has few IP law remedies. The Lanham Act provides for trademark cancelation for commercial misrepresentation, but that argument may require extensive litigation and has no guarantee of success. If Wardle, or now The New York Times, does not seek trademark protection, the number of copycats using some form of WORDLE will increase with Wordle’s popularity.
If you or someone you know is in a similar situation to Wardle, you should consider filing a trademark application at the USPTO as soon as possible to prohibit others from using your name. If you have any questions or comments, feel free to reach out to me or any of the other IP attorneys at Lerner David.