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Bobby Ghajar Leads Successful Trial on Board Game Trademark Infringement
As mentioned in: Daily Journal, Law360November 8, 2012
Bobby Ghajar, a partner with Pillsbury’s intellectual property section in Los Angeles, led a successful trial for Spin Master Ltd., which will be awarded $8.6 million in damages for trademark infringement by Zobmondo Entertainment LLC, a board game company, for using the trademark phrase, "Would You Rather…?" for over a decade.
The case, which has worked its way up through federal court to the 9th U.S. Circuit Court of Appeals and back, argued that the difference between whether a trademark is "descriptive" or "suggestive" can be a fine line, which needs to be decided by a jury.
"The jury here heard all of the evidence and they were able to use their common sense and conclude that this is a protectable trademark. This is a suggestive trademark," Ghajar said.
If a trademark is determined to be descriptive, as Zobmondo Entertainment argued, it is invalid.
Ghajar said Zobmondo’s only defense was validity, arguing "Would You Rather…?" was a necessary term to describe such a game.
“They didn’t have the argument that the marks were different. They didn’t have the argument that there was no confusion," Ghajar said. "This was one of very few cases I can think of that made its way through jury when the core issue was validity. The defendant banked on the fact that he could prove to a jury that it was not valid."
