This opinion is old, but Westlaw just coughed it up, perhaps because of a related jury finding that Zombondo infringed the Would You Rather …? mark and was liable for significant damages. I’m going to write about the older opinion because it addresses an issue near and dear to my heart. On these facts, in 1998, Zobmondo “introduced the first board game based on the traditional conversational game known as ‘would you rather.’” Imagination later debuted its own board game titled “Justin & David's Original Would You Rather ... ? Board Game.” Zobmondo alleged that “Original” constituted false advertising.
Imagination moved to dismiss based on Dastar, and the court denied the motion. Zobmondo pled that “original” falsely conveys that Imagination’s game was earliest/first in time, when it wasn’t. The claim was not about who was responsible for originating the concept of the game, but rather who was the first to make a “would you rather” board game. Thus, this was a claim of alleged misrepresentation about the production of the physical good. Also, it was a §43(a)(1)(B) claim, as preserved by Dastar. No interaction with copyright or patent law was implicated, nor would any determination be required of who came up with the idea of the board game.
In addition, the court found that “original” was not, as a matter of law, puffery. Who made the first “would you rather” board game was not subjective and was falsifiable. But Imagination was free to raise puffery later, if the evidence showed that no one would ascribe that particular meaning to “original” in this context.