ALM Properties, Inc.
Page printed from: The Recorder
Select 'Print' in your browser menu to print this document.
Zynga Cries Foul Over 'Bang With Friends'It was inevitable: Apple booted it. Zynga decried it. And on Tuesday, the casual sex app Bang With Friends got slammed with a trademark suit.
2013-08-01 12:00:00 AM
SAN FRANCISCO — It was inevitable: Apple booted it. Zynga decried it. And on Tuesday, the casual sex app Bang With Friends got slammed with a trademark suit.
Zynga Inc., maker of the ubiquitous Words With Friends, accuses creators of the match-making app of deliberately and illegally using its "With Friends" trademark and tarnishing its brand in the process.
"Defendant's violation of Zynga's rights has had its intended effect," wrote Zynga attorney Dennis Wilson, a partner at Kilpatrick Townsend & Stockton, in the trademark infringement suit filed Tuesday in the Northern District of California. "[The] 'Bang With Friends' app caught a free ride on the coattails of Zynga's famed With Friends family of marks and gained notoriety while simultaneously causing consumer confusion and falsely associating the 'Bang With Friends' app with Zynga."
In addition to Words With Friends, S.F.-based Zynga makes Chess With Friends, Running With Friends and other similarly named online games that are played by millions worldwide.
Colin Hodge, CEO and co-founder of Bang With Friends, responded to Zynga's accusations Wednesday in an unorthodox email to The Recorder.
"A lot has been going on at the BangPad recently," Hodge began. "As a technology company, we take intellectual property seriously and will evaluate the case in detail once we receive a copy."
Since its February launch, the adult-oriented app has attracted 1.1 million visitors according to Bloomberg News. That's a lot of unwanted publicity from Zynga's point of view. In its lawsuit, Zynga points to articles and tweets showing conflation of the companies. One tweet cited by Zynga's lawyers reads: "Bang with friends is the new Words With Friends."
Those tweets could provide powerful evidence. That's because a key issue in trademark infringement claims is whether consumers are likely to be confused, said Laura Chapman, a partner in Sheppard Mullin Richter & Hampton's San Francsico-based IP practice.
"People may think that Zynga is a wholesome brand, and so the issue will be whether it's likely that they would associate a raunchy app like 'Bang With Friends' with Zynga," Chapman said.
Bang With Friends is not the only bee in Zynga's trademark bonnet. In May, it told owners of dating website CupidWithFriends that they needed to change the company's name.
Zynga points to a string of successes defending its marks. The U.S. Patent and Trademark Office has rejected wannabes like "Crosswords With Friends," "Yacht With Friends," "Fitness With Friends," and "Fantasy With Friends". Earlier this year, Apple removed Bang With Friends from its app store amid controversy over the name and the nature of its service. (Bang With Friends enables Facebook users to click on photos of friends they want to hook up with and notifies that person if the interest is mutual.)
Chapman said Zynga's case will likely depend on evidence of confusion and dilution, that is, whether Zynga is so famous it rises to the level of a household name. And those concepts aren't easy to prove. In fact, Chapman noted, Zynga's complaint does not assert that media reports or tweets prove consumers are confused but rather that they demonstrate a "connection" and "association."
Bang With Friends has revealed little about its executives, management structure and ownership, confounding Zynga's attempts to resolve its dispute out of court, according to its complaint. In place of publicly listing its officers, directors or agents, it provided only one e-mail for outside inquiries: email@example.com.
Bang With Friends' legal team is not yet known, and Hodge declined to answer specific questions.
The Cornell computer science alum did, however, affirm his company's mission statement of sorts. "We continue to be focused on making our users happy, so that they can help each other be happy," he wrote before signing off, "Keep Calm and Bang On."
Contact the reporter at firstname.lastname@example.org.