Honey Badger Trademarks Allowed by Court to Live and Fight Another Day
The 9th Circuit recently overturned a summary judgment ruling against the creator of a viral video, allowing his trademark infringement lawsuit over the video’s equally viral catchphrase to continue.
The Honey Badger Craze
“The Crazy Nastyass Honey Badger,” created by Christopher Gordon (online alias “Randall”), features Gordon’s narration over footage of a honey badger in his natural habitat. During his narration, Gordon coined the catchphrases “Honey Badger Don’t Give a S—” and “Honey Badger Don’t Care,” the latter of which Gordon registered as a trademark for a variety of goods, including greeting cards.
In January 2012, Gordon hired an agent who entered into talks with one of the defendant’s parent company American Greetings about licensing honey-badger themed greeting cards. While the American Greetings representative expressed interest, no agreement was ever signed. Later that year, the defendants began selling their own line of unlicensed honey-badger greeting cards, using slight variations of the trademarked phrase such as ““Honey Badger and me just don’t care. Happy Birthday.”
Gordon’s Trademark Infringement Suit
The district court granted summary judgment to the defendants based on an application of the Rogers test, which holds that where a defendant (1) uses a mark in connection with an expressive work, (2) that use is artistically relevant to the work, and (3) it does not explicitly mislead consumers as to the source or the content of the work, a plaintiff may not maintain a trademark infringement suit under the Lanham Act.
The appellate court did not agree with the district court’s result, stating that the Rogers test “is not an automatic safe harbor for any minimally expressive work that copies someone else’s mark.” The court reasoned that “the use of a mark is artistically relevant if the defendant uses it for artistic reasons.” Viewing the evidence in a light most favorable to Gordon, the court concluded that a triable issue of fact existed about whether the defendants’ works used the trademark in an artistically relevant manner or merely appropriated the mark’s goodwill.
Specifically, the court pointed out that Gordon sold greeting cards and other products bearing his mark, his agent met with the defendants’ parent corporation to discuss licensing, and shortly thereafter, they started developing their own line of greeting cards that used Gordon’s catchphrases in different ways. In summation, the court held that the defendants “may have merely appropriated the goodwill inherent in plaintiff’s mark without adding any creativity of their own” based on evidence that defendants “simply used Gordon’s mark in the same way that Gordon was using it—to make humorous greeting cards in which the bottom line is “Honey Badger don’t care.””
The case will now go back to the district court for trial unless the parties settle beforehand.
Photo by Peter Trimming (Flickr: ‘Honey’), CC BY 2.0 via Wikimedia Commons.
