United States District Court for N.D. Cal.
Case No. 3:09-cv-02748-EMC, Filed June 19, 2009
This case was dismissed on November 18, 2010. On January 8, 2010, the court referred this case to mediation. After several months in ADR, Zynga filed for voluntary dismissal of the case under FRCP 41(a). Rule 41(a)(1) allows for the plaintiff to dismiss an action without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.
We recently wrote about Zynga, the developer of online social games, bringing a claim in the beginning of June against John Does 1-5 because of the defendants’ use of a domain name that allegedly infringed on Zynga’s trademark. Zynga has filed a similar suit, this time against Playdom for trademark infringement of one of Zynga’s most popular games, Mafia Wars. Playdom is also a social gaming company with its game Mobsters being the top game on MySpace.
According to the complaint, on June 12, 2009, one of Zynga’s employees came across an advertisement on Facebook that was marketing Playdom’s game Mobsters using the Mafia Wars trademark. The advertisement in controversy says in large text: “Like Mafia Wars?” and beneath that shows a picture of a gangster with small text saying: “Click here to play Mobsters. Its [sic] got henchmen, mini games, message boards and sophisticated style.” The complaint states that the ad doesn’t display the Playdom name or trademark and doesn’t make clear whether the ad is for Mobsters or Mafia Wars. If a user clicks anywhere on the ad, including on the name Mafia Wars, a window opens to install the Mobsters game, but nowhere is the Playdom name or trademark shown. Zynga apparently contacted Playdom after learning of the ad and asked them to stop using the Mafia Wars trademark. Playdom changed the ad to say “Like Mafia Games?” for some period of time but then changed it back to the original and has refused to take it down.
Zynga alleges that the ambiguity of the ad may cause users confusion about which game is being advertised and may lead users to believe that Zynga endorses or sponsors Playdom. The complaint states that Playdom has intentionally acted to deceive the public and divert business away from Zynga. Zynga claims relief for Trademark Infringement, False or Misleading Designation of Origin, and False Advertising under the Lanham Act as well as False Advertising and Unlawful Business Practices under the California Business & Professions Code. Zynga is seeking an injunction to stop Playdom’s use of its trademark, “corrective advertising to dispel the confusion” created by use of the trademark, and a monetary award for lost profits and Playdom’s “ill-gotten” gains.
Read the full complaint here.