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

Blingville v. Zynga Settled

I have been following the Blingville v. Zynga defensive suit here, here, and here, in which Blingville, LLC filed suit against Zynga in the Northern District of West Virginia. Blingville sought to stave off Zynga’s claims of trademark infringement by contending that its use of the mark BLINGVILLE for a game does not violate Zynga’s trademark rights. After checking the docket, I can see that the month after I last checked in with the case, the case settled, and the resulting consent judgment shows that Zynga achieved its goal of stopping Blingville, although Zynga did not extract any money from Blingville as a result of the case. For a copy of the consent judgment, click here.
On May 25, 2012, after the parties notified the court of their stipulation to a Final Judgment Upon Consent, the Court signed the judgment and entered it in the case. The consent judgment says that Blingville is stipulating to a set of facts highly favorable to Zynga. First, it says that Zynga owns the CITYVILLE®, FARMVILLE®, FISHVILLE®, FRONTIERVILLE®, PETVILLE®, and YOUVILLE® marks. More importantly, the consent has an acknowledgement that Zynga owns the VILLE family, the VILLE marks are distinctive, and Blingville infringed on this family of marks by using the mark BLINGVILLE in commerce. These were the most important issues in the case, and Blingville simply conceded them.

Following these important concessions, the order contains a permanent injunction. The injunction bars the Blingville side in the case from using BLINGVILLE or any VILLE mark. It also says that the Blingville parties cannot mislead the public into thinking there is a connection with Zynga or a sponsorship relationship with it. The Blingville parties are also not to use words or symbols with goods or services to suggest that they are Zynga’s or are authorized by Zynga. The injunction essentially stops the Blingville side from engaging in the conduct that Zynga originally complained of to Blingville.

Given these acknowledgements and the injunction against Blingville, Zynga won almost a complete victory in this case through this settlement. Nonetheless, the consent judgment includes an interesting statement that “[n]either party provided the other party with any settlement amounts or payments in connection with” the consent judgment and each party must pay its own attorneys’ fees and costs. In other words, no money changed hands. From Blngville’s perspective, the fact that it did not have to pay Zynga anything made it palatable to settle, and was an important bone to throw to the Blingville side.

Reading between the lines, it is apparent that the Blingville side did not want a long fight with a large company like Zynga. Given the economics of litigation, it would have spent a lot to fight Zynga on the key issue in the case -- the ability for Zynga to claim rights in the VILLE family of marks. It may have lost. And it might just be easier for Blingville’s principals to change names or choose a different game or even different line of business than spend the money to fight Zynga. Too, if it could get out of the suit without paying Zynga anything, it can move on with its game development without a crippling obligation to pay Zynga a settlement. Consequently, Blingville walked away with as good a result as it could be expected to achieve without spending huge sums to fight Zynga, and bearing the risk of paying Zynga a large judgment and attorneys’ fees.

From Zynga’s perspective, it achieved what it originally wanted with its threats of suit--getting Blingville to stop using the BLINGVILLE mark. Although it had to pay its own attorneys’ fees, the injunction is a key victory for Zynga. The consent judgment also shows other potential competitors that Zynga intends to protect the VILLE family of marks, is willing to put resources into litigation to protect it, and will see lawsuits to the end. Therefore, Zynga achieved a good result.

Consequently, the settlement looks like it made sense to both parties. Each party walked away with something. Nonetheless, Zynga emerged from the case with more of what it wanted to achieve.
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