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”.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.
- 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.
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.
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Filed Under: generic, trademark, would you rather
Companies: one mighty roar, spin master
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And OneMighty Roar is reminding Spin Master that the real world isn't't that simple.
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Still, maybe the app developers wouldn't mind changing to something like, "Dost Thou Prefer?"
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Could have been worse
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fuck this shit
this just needs to die fast and no one buy there shit no more
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prior art on the words
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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Would you rather them do nothing?
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Ack! It's Driving me Nuts!
mv article.new article.txt
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I think they should call their app line
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Re: I think they should call their app line
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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Loving Exhibit B
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Wouldst thou prefer?
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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Re: Wouldst thou prefer?
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Re: Re: Wouldst thou prefer?
"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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Re: Re: Re: Wouldst thou prefer?
Could even call it the Troll vs. Troll case.
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So... Would you Rather?
Spend eternity with tradmark lawyers, or lick all the public toilet seats in downtown San Fransicso with your tongue?
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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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Would you rather...
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Reminds me of an old ad
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Dang, I thought I invented it.
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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Would you rather...
P.S. I used "would", "you", and "rather" in this post Spin Master! Come at me!
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Re:
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Dick
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If anyone still cares...
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