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Zobmondo (9th Cir. April 26, 2010)

Zobmondo (9th Cir. April 26, 2010)

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Published by David Weiskopf

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Published by: David Weiskopf on Jul 20, 2010
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01/04/2013

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZOBMONDO ENTERTAINMENT, LLC, a
California limited liability
company,
Plaintiff-counter-defendant-
No. 08-56831
Appellee,
D.C. No.
v.
2:06-cv-03459-
FALLS MEDIA, LLC, a New York
ABC-JTL
limited liability company; JUSTIN
OPINION
HEIMBERG, an individual; DAVID
GOMBERG, an individual,
Defendants-counter-claimants-
Appellants.

Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief District Judge, Presiding

Argued and Submitted
March 3, 2010—Pasadena, California
Filed April 26, 2010
Before: Ronald M. Gould, Sandra S. Ikuta and
N. Randy Smith, Circuit Judges.
Opinion by Judge Gould
6093
COUNSEL

Bobby A. Ghajar (argued), Kelly W. Craven, Howrey LLP, Los Angeles, California; Jerrold J. Ganzfried, Howrey LLP, Washington,

D.C.,
for

defendants-counter-claimants- appellants Falls Media, LLC, Justin Heimberg, and David Gomberg.

Lawrence Y. Iser, Gregory P. Korn (argued), Gregory S. Gabriel, Kinsella Weitzman Iser Kump & Aldisert LLP, Santa Monica, California, for plaintiff-counter-defendant-appellee Zobmondo Entertainment, LLC.

6096
ZOBMONDO ENTERTAINMENT v. FALLS MEDIA
OPINION
GOULD, Circuit Judge:

Appellants Falls Media, LLC, Justin Heimberg, and David Gomberg (collectively “Falls Media”) appeal the district court’s summary judgment for Appellee Zobmondo Entertain- ment, LLC (“Zobmondo”) rejecting Falls Media’s action for trademark infringement, unfair competition, and related claims arising from Zobmondo’s use of Falls Media’s feder- ally 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 cancelled from the fed- eral 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 com- petitors, Falls Media1 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, bizarre, or undesirable choices.2 As of 2008, both competitors had established successful businesses earning millions of dol-

1Appellants Justin Heimberg and David Gomberg formed Falls Media,

LLC in 2004. For ease of reference, we use the term “Falls Media” to refer collectively to Appellants both before and after the formation of Falls Media, LLC.

2For example, a sample question posed by Falls Media asks, “Would

you rather be able to expedite the arrival of an elevator by pressing the button multiple times or have the ability to sound incredibly natural and sincere on answering machines?”

6097
ZOBMONDO ENTERTAINMENT v. FALLS MEDIA

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