Stephen S. Wu-- SL: Legal Writer, swu@ckwlaw.com, (650) 917-8045, 166 Main Street, Los Altos, CA 94022

Blingville v. Zynga Update

In January, a company called Blingville, LLC filed a preemptive suit against Zynga in the Northern District of West Virginia. Blingville filed the suit as a defensive move to claim that its use of the mark BLINGVILLE for a game does not violate Zynga’s trademark rights. I wrote about the complaint earlier this year. What has happened to the case since the complaint? Not a whole lot has occurred, although some recent filings shed light on the status of the case. Right now, the parties are in the discovery process of gathering and exchanging information. The parties anticipate the case will be ready for trial in June 2012.
Zynga takes the position that it has the exclusive right to use marks with the “ville” suffix in the market for social networking games. Blingville, by contrast, takes the position in its complaint that its BLINGVILLE mark does not infringe on the rights Zynga has in its marks ending in “ville” used as game names. Blingville notes that Zynga does not have a “Blingville” game.

Following the complaint, Zynga filed an
answer and counterclaim document, which addressed Blingville’s claims, and also asserted its own claims against Blingville. Blingville, in turn, answered Zynga’s counterclaim. The parties then conferred through counsel to reach certain agreements on pretrial proceedings. In their report to the court, the parties stated that they anticipate the case will be ready for trial in June 2012.

Other documents show that the parties exchanged initial disclosures, a disclosure of certain information required under the Federal Rules of Civil Procedure. On September 16, 2011, Zynga filed documents stating that it had sent Blingville interrogatories, questions to be answered under oath, and requests for the production of documents (and presumably electronically stored information). The actual requests (and answers to follow) are not filed, but instead the filings merely certify that Zynga sent the requests to Blingville.

The most interesting reading among the new filings is
Zynga’s answer, which claims, first, that Blingville, LLC did not even exist at the time the dispute with Zynga arose. Zynga contends that Blingville, the limited liability company, was created for purposes of the lawsuit. Second, Zynga emphasizes that the person or persons behind Blingville, is an active player, or are active players, of Zynga’s games. Third, Zynga alleges that Blingville has yet to publish a game. Blingville’s answer to the counterclaim denies Zynga’s claims.

As I stated in January, the key issue in the case is whether Zynga really does have rights in a VILLE family of marks. Nonetheless, if Zynga can prove that Blingville’s founders are or were Zynga game players, it may color the proceedings. Zynga will try to show that Blingville’s founders, after seeing Zynga’s success, intentionally tried to capitalize on the goodwill in the alleged VILLE family of marks. Blingville may be positioning the case for a request for the judge to dismiss Zynga’s claims based on some of its legal defenses. I will check back on the status of the case in a few months.
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