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.
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