Here’s a message to all lawyers drafting demand letters. Before you fire off that deliciously evil, in-your-face, incendiary letter replete with all those unreasonable demands you dreamed up over the last 30 minutes of editing, take a good hard look at what you’ve written, and then stop. Just… stop.
What did you think you were going to gain? Did you hope it would help your letter stand out? Prove to your adversary that you’re really serious? Set a bold opening bid for negotiations? Are there visions of a terrified person reading your letter and running to the phone to give your client everything under the sun?
Take, for example, these guys, whose string of ridiculous demands not only failed to reduce their adversary to jelly, it elicited a declaratory judgment suit.
So the question is, “Would You Rather: Be self-satisfied over your own cleverness or save your client from litigation?”
As teased before the jump, this case arises from the game “Would You Rather,” where people concoct latter-day Sophie’s Choice scenarios, except instead of saving the life of a child, they usually involve declaring whether you’d f**k Steve Buscemi or Danny DeVito. Anyway, You Rather is the largest online compendium of Would You Rather questions. It’s been up and running for four years without incident. But now a board game company with a registration for the trademark “WOULD YOU RATHER..?” has targeted You Rather for infringing their trademark in a game that existed for years because they make a version of the game in another medium altogether.
Maybe Spin Master, the company that makes the board game version of “WOULD YOU RATHER..?”, is feeling a little emboldened after winning a multimillion-dollar lawsuit against a company that sold board games with the same name. But in that case the infringing company used the exact same mark and competed in the exact same media. In case you were asking, I’d much rather have that case than this one.
But put aside whether Spin Master can win this infringement claim on the merits, consider what they asked for in their demand letter, as explained on You Rather’s blog:
1. Stop using “You Rather” and any other phrases that are similar to “Would you rather”. This includes one (yes, really) or more of the words “Would”, “You”, or “Rather”.
2. Hand over our yourather.com domain immediately
3. Tell them how much money You Rather has made (presumably to ask for that too)
4. Pay for their lawyers
“One or more of the words ‘Would,’ ‘You,’ or ‘Rather.'” Presumably this is meant to prevent You Rather from just rearranging words, but this is a demand letter, not a contract. There’s no need to get cute and ask the website to agree to abandon any use of the word “you.” This is why people hate lawyers.
At least Spin Master was helpful enough to propose some new names for You Rather. Did I say “helpful” just then? Because I meant “obnoxious.”
The “Mysterious Subject Matter” – “THIS OR THAT”
The “Interrogator” – “YES OR NO”
The “Make up your mind already” – “EITHER THIS OR THAT”
The “Pokemaster” – “I CHOOSE”
The “Young consumer appeal” – “DO YA WANNA”
Not only are these laughably obnoxious, but these suggestions are kind of self-defeating, since they highlight how generic the name “Would You Rather” really is. We’re lucky Spin Master doesn’t have more board game trademarks or we’d have to start describing intense battles of wits as “white and black horsey fights.”
The people behind You Rather were sufficiently insulted by the letter that they’ve filed a declaratory judgment action rather than continue trying to negotiate. The complaint is a curation of how Spin Master not only didn’t invent the game “Would You Rather,” but also likely didn’t coin the name of the game either. It’s now up to the courts to decide just how far Spin Master can stretch its trademark of the words “Would,” “You,” and “Rather.”
Maybe Spin Master should have employed a little more honey than vinegar.
(Flip to the next page for the complaint that One Mighty Roar LLC, owner of the You Rather online game, filed against Spin Master Ltd.)