Zobmondo Entertainment, LLC v. Falls Media, LLC

Appellants Falls Media, LLC, Justin Heimberg, and David Gomberg (collectively “Falls Media”) appeal the district court’s summary judgment for Appellee Zobmondo Entertainment, LLC (“Zobmondo”) rejecting Falls Media’s action for trademark infringement, unfair competition, and related claims arising from Zobmondo’s use of Falls Media’s federally registered trademark, “WOULD YOU RATHER ... ?”. The district court held that “WOULD YOU RATHER ... ?” is not entitled to federal trademark protection because the mark is “merely descriptive” and lacks secondary meaning, and the district court ordered the mark can-celled from the federal trademark registry. We have jurisdiction under 28 U.S.C. § 1291 . We conclude that there is a genuine issue of material fact whether “WOULD YOU RATHER ... ?” is merely descriptive. Hence we reverse the summary judgment and remand for further proceedings consistent with this opinion.

I

This appeal involves a persistent dispute between two competitors, Falls Media and Zobmondo, over the right to sell products using the “WOULD YOU RATHER ... ?” mark. Both competitors use similar marks to identify board games and books that incorporate questions posing humorous,…