Two years ago, Falls Media, an Imagination company and publisher of a book and game series called “Would You Rather?”, sued Zobmondo for publishing a nearly identical game called “Would You Rather?” A lower court found in favor of Zobmondo in their claims that “Would You Rather?” was too generic a phrase to receive the trademark protection, which Falls Media had acquired.

The US Court of Appeals has just overturned that finding and awarded the trademark to Falls Media after all. The court said that the phrase used as a title was distinctive after all, in that a) Falls Media had bothered to file for the trademark (which sounds dumb to me), and b) Zobmondo had tried to acquire the trademark from Falls Media, indicating that they, at least, had considered the phrase worthy of trademark protection at one point, making it disingenuous to now claim that it isn’t (which makes sense to me).