Board Game Manufacturer Attempts To Take Down App Over The Use Of The Words 'Would You Rather'

from the again-proving-anything-can-be-trademarked dept

A nearly literal war of words has erupted online, prompted by a trademark dispute. The words in question? "Would you rather."

These three words, which have prompted wonderful (and wonderfully disturbing) discussions all over the internet (and IRL, as far as I've heard) apparently "belong" to Spin Master, a toy company whose products involve board games and apps. The company on the receiving end of legal threats for daring to use "would you rather" commercially is One Mighty Roar, whose "You Rather" apps have caught the attention of Pillsbury Winthrop Shaw Pittman LLP, the legal team representing Spin Master.

One Mighty Roar's apps have attracted millions of players over the last four years, but only in the past few weeks has it managed to trigger any sort of legal action.

Earlier this month we were happily debating merits of teleportation when we received an email from Apple. It said that Spin Master, a company with a board game based on “would you rather” questions, had filed a complaint with Apple saying our You Rather apps infringed their “WOULD YOU RATHER..?” trademark. Soon after, we received a matching letter from Google. It was a true Christmas miracle.
Spin Master's claim to the words "would you rather" traces back (rather circuitously) to 1997, but the registered trademark being leveraged here was filed in 2008 and granted in October of this year. The trademark covers board games and claims first use in 2004. Additional trademark owned by Spin Master also cover such areas as printed matter (mainly books and comic strips) and more pertinently, "computer and television DVD games."

Now, as One Mighty Roar's blog post points out, Spin Master hasn't gone so far as to claim it invented the "would you rather" game, but that still hasn't stopped it from making several hefty demands.
- Stop using “You Rather” and any other phrases that are similar to “Would you rather”. This includes one (yes, really) or more of the words “Would”, “You”, or “Rather”.

- Hand over our yourather.com domain immediately

- Tell them how much money You Rather has made (presumably to ask for that too)

- Pay for their lawyers

- Attend a free no-obligation vacation for a hot new timeshare in Wyoming

At this point legally we should clarify that the last item is a joke, although at a certain level we wish they’d just gone the full gambit. Nowadays folks lack ambition, and we’re glad to see we’re not the only ones with big dreams.
These demands are rather extreme, especially for a company that no one thinks of when the words "would you rather" are spoken. One Might Roar clearly points this out in its filing, showing that if anything, "would you rather" is a generic term that is used to describe either/or queries, usually of the subjectively-lesser-of-two-evils variety.

Oddly enough, Spin Master's lawyers went out of their way to suggest several ungainly replacement titles for One Might Roar's apps, including such monstrosities as "this or that" (not really even the same thing) or "do you wanna" (which is at least adjacent to the ballpark, but still not really in it). This bit of "helpfulness" prompted the One Might Roar team to begin a search for a replacement URL equally as awkward.
There’s something wrong if a game of “Would you rather?” questions can’t use any of the words “Would”, “You”, or “Rather” to identify itself. Spin Master enforcing the trademark this way makes people afraid to call a popular game (which they didn’t invent) what it is. Worse still, their demands show similar issue with “Would you choose”, “Would you prefer” and other “Would you” alternatives out there. We’re lucky choosetheoptionpleasingtoonessensibilities.com is available… for now.
One Might Roar isn't just going to sit there and get steamrolled by Spin Master. It has responded by asking for declaratory judgement, pointing out that "would you rather" is all over the web, but none of it (other than Spin Master's site) makes any reference to the presumably underperforming board game.

One Might Roar clearly has a point, not that logic and common sense have much to do with trademark enforcement. This legal filing gives Spin Master the appearance of a company willing to profit off the success of others while simultaneously ensuring the burial of a rival. Not that One Might Roar is a true rival. At this point, Spin Master hasn't crafted an app version of its board game, so the threat it faces hardly even clears the "existential" bar.

But we're once again back to One Mighty Roar being at the mercy of the court at this point. It should be pointed out that Spin Master (represented by Pillsbury Winthrop et al) managed to nail down an $8.6 million settlement from Zobmondo Entertainment LLC back in 2012 over its use of the phrase "would you rather." That court battle dragged on for over six years, with the final decision finding in favor of Spin Master following a reversal that kicked it back to Ninth Circuit court. The key here, though, is the fact that Zobmondo was making its own board game, in direct competition with Spin Master's. Unfortunately, the decision that was reversed was one that stated the words "would you rather" were descriptive and "lacked secondary meaning." The Ninth Circuit (and its California jury) found otherwise on appeal, declaring the phrase to be protectable.

This puts One Might Roar's petition for declaratory judgement on unsure footing. Part of what it's asking for is to find the trademarked term merely descriptive and undeserving of trademark protection. The Ninth Circuit court has already made its declaration on the matter. This battle will take place in an entirely different jurisdiction (Massachusetts) but Spin Master's previous win can't be entirely discounted.

Based on what can be observed on the net, "would you rather" is for all intents and purposes generic. Spin Master's site is the only place (outside of board game databases) where one will find this phrase being used commercially. Otherwise, it's fair game for subreddits, standalone sites and any descriptions of the game describe the premise only, making no reference to Spin Master's trademarked product.

In order to keep their registrations from lapsing, trademark owners do have to make efforts to protect their brands, but Spin Master's attempt to drain these developers has very little to do with protecting its branded product. The You Rather? app bears no resemblance to the board game other than the use of the words "would you rather," words that can only very imaginatively be thought of as holding any sort of commercial viability. Giving Spin Master a win in this case will do nothing to discourage trademark trolling and frivolous filings.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Jan 3rd, 2014 @ 5:14am

    So in other words, Spin Master has asked One Mighty Roar "Would you rather give in to our extortionist demands, or be sued into total oblivion?"

    And OneMighty Roar is reminding Spin Master that the real world isn't't that simple.

     

    reply to this | link to this | view in thread ]

  2.  
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    Rosco P Coltrane (profile), Jan 3rd, 2014 @ 5:19am

    I most associate the phrase, " would you rather" with the 1984/5 SNL sketches between 2 coworkers describing outrageous painful situations... "I hate when that happens." This catch phrase certainly predates the board game trademark trolls.

    Still, maybe the app developers wouldn't mind changing to something like, "Dost Thou Prefer?"

     

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  3.  
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    That One Guy (profile), Jan 3rd, 2014 @ 5:32am

    Could have been worse

    They could have been threatening all that over 'Would you kindly?', in which case there would potentially be a lot more to be worried about than a simple board game.

     

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  4.  
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    Anonymous Coward, Jan 3rd, 2014 @ 5:39am

    I guess anyone who's ever read a grammar textbook is fucked, then.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Jan 3rd, 2014 @ 5:51am

    IP laws creating a class of parasites in the world.

     

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  6.  
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    Anonymous Coward, Jan 3rd, 2014 @ 6:00am

    Next up, some company trademarks the word "bad", and everyone has to start saying "ungood" instead.

     

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  7.  
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    Jessie (profile), Jan 3rd, 2014 @ 6:11am

    Wait. One of their suggestions, "do you wanna", contains one of the restricted words, "You". Even they can't suggest titles for the game that don't violate their trademark based on their reading.

     

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  8.  
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    Guardian, Jan 3rd, 2014 @ 6:47am

    fuck this shit

    YOU? would? and rather?

    this just needs to die fast and no one buy there shit no more

     

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  9.  
    identicon
    Guardian, Jan 3rd, 2014 @ 6:53am

    prior art on the words

    1st use of the word "YOU"

    well it senglish use anyhow...

    Old English ēow, accusative and dative of gē (see ye1); related to Dutch u and German euch . During the 14th cent. you began to replace ye1, thou1, and thee; by the 17th cent. it had become the ordinary second person pronoun for any number and case.

     

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  10.  
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    Anonymous Coward, Jan 3rd, 2014 @ 6:55am

    Would you rather them do nothing?

    I'm glad they are because this one is going to be good.

     

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  11.  
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    mmrtnt (profile), Jan 3rd, 2014 @ 6:56am

    Ack! It's Driving me Nuts!

    sed -e 's/Might /Mighty /g' article.txt > article.new;
    mv article.new article.txt

     

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  12.  
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    Anonymous Coward, Jan 3rd, 2014 @ 7:02am

    I think they should call their app line

    Since they cant use the words "Would" "You" or "Rather" just scrap the whole thing and call it "Spin Master SUCKS!". But then again, Spin Master already probably has that trademarked too since they already knew that.

     

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  13.  
    identicon
    Donglebert the Needlessly Obtuse, Jan 3rd, 2014 @ 7:05am

    Loving Exhibit B

    WYR ask someone out through the medium of poetry or interpretive dance?

     

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  14.  
    identicon
    Shane, Jan 3rd, 2014 @ 7:18am

    Wouldst thou prefer?

    Ok, I started in an attempt to be silly and googled 'Wouldst Thou Prefer' turns out there is an Autobiography of a Muslim Warrior who died in 1188 which contains the following question...

    He then said to the knight, "Which wouldst thou prefer, living with one leg or dying with two?" The latter replied, "Living with one leg."

    In this case the question was real rather than hypothetical but its still the same bloody question and the same basic situation with about 800 years on the prior art front....

     

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  15.  
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    Anonymous Coward, Jan 3rd, 2014 @ 7:41am

    Re: I think they should call their app line

    call it "Spin Master SUCKS!". But then again, Spin Master already probably has that trademarked too since they already knew that.

    Using a trademark in a merely descriptive fashion is not trademark infringement.

    I suggest "Spin Master SUCKS! They do not want you to choose which one would you rather in this game"

     

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  16.  
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    RyanNerd (profile), Jan 3rd, 2014 @ 8:06am

    So... Would you Rather?

    Spend eternity with trademark lawyers, or jump naked into a swimming pool filled with razor blades?

    Spend eternity with tradmark lawyers, or lick all the public toilet seats in downtown San Fransicso with your tongue?

     

    reply to this | link to this | view in thread ]

  17.  
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    Jeff, Jan 3rd, 2014 @ 8:36am

    I think I'll take note the next time I go shopping for board games, to avoid any by SpinMaster...

     

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  18.  
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    PRMan, Jan 3rd, 2014 @ 8:42am

    Re: Wouldst thou prefer?

    Trademarks have nothing to do with prior art.

     

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  19.  
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    Anonymous Coward, Jan 3rd, 2014 @ 8:51am

    Re: Re: Wouldst thou prefer?

    No. But plain language words and phrases can produce overly broad trademarks far too easily. They are supposed to face extra scrutiny for that reason.

    "Would You Rather" is a plain English description of a game that even Spin Master admits they didn't invent. To claim a trademark on this—and even worse, the individual words—is very clearly an overly broad claim.

     

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  20.  
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    Annonimus, Jan 3rd, 2014 @ 8:52am

    Um isn't this or that a euphemism for sex? And wouldn't that imply that One Might Roar would have to go into the sex industry?

    No wonder they are fighting this. I mean who the fuck wants to compete with the sex board game and/or sex aps market? Have you seen how over-saturated they are?

     

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  21.  
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    Theo Uy (profile), Jan 3rd, 2014 @ 9:00am

    Would you rather...

    Have a family of trademark lawyers and trademark trolls, or spend eternity in hell?

     

    reply to this | link to this | view in thread ]

  22.  
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    Anonymous Coward, Jan 3rd, 2014 @ 9:47am

    Reminds me of an old ad

    "Wouldn't you really rather have a Buick?"

     

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  23.  
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    DogBreath, Jan 3rd, 2014 @ 10:39am

    Re: Re: Re: Wouldst thou prefer?

    Next up, Spin Master creates a board game called "On The Internet" gets it Trademarked, and sues everyone who creates or uses anything in a Patent that includes the words "on the internet".

    Could even call it the Troll vs. Troll case.

     

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  24.  
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    Anonymous Coward, Jan 3rd, 2014 @ 1:23pm

    Well they will continue to do these crazy stunts as long as the system is set for "Pass start and collect $200" every time, and not "You go to jail".

     

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  25.  
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    Cartoonbear, Jan 3rd, 2014 @ 3:58pm

    Dang, I thought I invented it.

    It's 1992, I'm sitting in a bar with the same friends I sit with in the same bar every night, realize we've run out of things to say. and said "let's play a game!"

    I guess I wasn't as creative as I thought. As USUAL.

    Though I *totally did* invent the variant "trauma or drama?" In which you either have to do "would you rather" OR act out a scene, drama kid styley. That was brilliant. Imma trademark that shit.

     

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  26.  
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    Anonymous Coward, Jan 6th, 2014 @ 11:20am

    Would you rather...

    Be sued by trolls with copyrights that overreach anything the copyright system was ever intended to do or be the person suing? I prefer option 1 because then I can post their c&d on the internet and laugh.
    P.S. I used "would", "you", and "rather" in this post Spin Master! Come at me!

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    Rekrul, Jan 6th, 2014 @ 1:41pm

    I should copyright/trademark the letter "e". I'll make a fortune! Go ahead, try writing something without using "e"!

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Anonymous Coward, Jan 24th, 2014 @ 6:46am

    - Attend a free no-obligation vacation for a hot new timeshare in Wyoming

    Dick

     

    reply to this | link to this | view in thread ]

  29.  
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    Mats Svensson, Feb 2nd, 2014 @ 2:20pm

    Death would be too kind for such scum.

     

    reply to this | link to this | view in thread ]

  30.  
    icon
    NelC (profile), Feb 3rd, 2014 @ 8:14am

    Re:

    I think I can do that, but not as good as this guy: Gadsby: A Story of Over 50,000 Words Without Using the Letter "E"

     

    reply to this | link to this | view in thread ]


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