Would You RatherRecall that story about the operators of YouRather.com deciding to fight back against Spin Master over the phrase, “Would you rather…?“? Well, after publishing it, I was contacted by the operator of a similar website that also had a run-in with Spin Master. Rrrather.com, however, decided to avoid the confrontation simply by varying the wording of its questions and avoiding the use of “…?” at the end of each.

But that doesn’t mean that Spin Master hasn’t actually sued anyone. In fact, the company filed suit Thursday against its own former attorneys, Howard & Howard. Spin Master’s claim of malpractice asserts that Howard & Howard failed to renew the trademark for Would You Rather…?, allowing it to lapse weeks before the trial against Zobmondo Entertainment. Spin Master further claims that while the firm did eventually register a new trademark, Spin Master’s case against Zobmondo required such restructuring, and its future position has been so weakened, that Howard & Howard should compensate Spin Master at least $3 million.

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Would You Rather Cease or Desist?

You RatherFirst, a quick review… Falls Media, makers of a board game by the name of “Would You Rather?”, sued Zobmondo, makers of another board game by the name of “Would You Rather?”, for infringing on their registered trademark. A lower court sided with Zobmondo and invalidated Falls Media’s trademark for being too generic. An upper court, however, disagreed and reinstated the trademark. Then, the owner of Falls Media sold the game (and others) to Spin Master. Spin Master eventually won a judgement against Zobmondo.

Now, for the update… According to One Mighty Roar, operators of YouRather.com and developers of You Rather mobile apps, the company recently received notice from Apple and Google that sales of its apps were being suspended due to complaints by Spin Master. The website and apps work pretty much like the board game, asking players to choose between two options, such as, “Would you rather eat a container of butter or drink a bottle of maple syrup?”

When One Roar followed up with Spin Master’s attorneys, they eventually received (again, according to One Roar) the following list of demands:

1. Stop using “You Rather” and any other phrases that are similar to “Would you rather”. This includes one or more of the words “Would”, “You”, or “Rather”.

2. Hand over our yourather.com domain immediately

3. Tell them how much money You Rather has made

4. Pay for their lawyers

The Spin Master attorneys even suggested replacement phrases:

  • “This or that”
  • “Yes or no”
  • “Either this or that”
  • “I choose”
  • “Do ya wanna”

However, rather than submit, One Roar has filed in federal court a request for declaratory judgement. The briefing—providing several other examples of the phrase, “Would you rather”, being used for similar purposes but not referring to the board game—makes two alternative arguments. This first is that “would you rather” is merely descriptive and therefore can’t be used as a trademark. The second is that the public understands the phrase, “would you rather”, as being generic and therefore its use would not create confusion.

I attempted to contact Spin Master but they did not reply in time for publication.

[via Above the Law]

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