–Dan Kelly, Attorney

A couple of weeks ago, the U.S. Court of Appeals for the Ninth Circuit reversed a district court that had held that the federally registered trademark “WOULD YOU RATHER . . . ?” was merely descriptive as applied to books and games.  (PDF of appellate opinion here.)  Briefly, the facts are that Falls Media owns the aforementioned trademark registration, which has priority to July 1997, and Zobmondo Entertainment, who publishes books and games under the identical mark as a subtitle, has challenged Falls Media’s trademark rights in court.  The appellate opinion gives a fairly succinct overview of the sordid details — it sounds like these parties have been feuding in one way or another about this trademark for more than ten years — almost as long as Falls Media’s rights in the mark.  Identical marks and goods usually makes for good spectating.

This case fascinates me for a few reasons.  First, the appellate opinion is quite good, and treats well issues related to the fuzzy border between descriptive and suggestive trademarks, particularly in the context of the sometimes nerdy procedural legal issue of summary judgment.  It also contains some excellent evidentiary analysis.  Second, there is something morbidly interesting about parties that have been feuding for more than ten years.  This is like the Hatfields and McCoys.  Third, and perhaps most interesting, is that the entire dispute centers around two parties that are both experiencing commercial success exploiting a game that I think has existed as some form of a parlor or car game since long before 1997.  Calls to mind a trite phrase about the rate at which suckers are born.

For now, the WOULD YOU RATHER . . . ? trademark has survived its first challenge, but the case now returns to the District Court for further proceedings, or maybe settlement, if the parties would rather . . . but probably not.

P.S.  On an unrelated note, does the Zobmondo “Would Your Rather” game box remind you of anything?  My answer after the jump . . .Continue Reading Which “Would You Rather” Would You Rather Play?