Academic journal article Missouri Law Review

Honey Badger Does Care about First Amendment Protections in Trademark Law

Academic journal article Missouri Law Review

Honey Badger Does Care about First Amendment Protections in Trademark Law

Article excerpt

Gordon v. Drape Creative, Inc., 897 F.3d 1184 (9th Cir. 2018)

I. INTRODUCTION

In his viral YouTube video, The Crazy Nastyass Honey Badger, comedian Christopher Gordon narrates a honey badger's actions as it hunts cobras and eats larvae from a beehive: "But look, the honey badger doesn't care. It's getting stung like a thousand times. It doesn't give a shit." (1) Shortly after Gordon's video went viral, Drape Creative, Inc. and Papyrus-Recycled Greetings, Inc. began producing greeting cards with catchphrases from Gordon's YouTube video even though the companies did not have a licensing agreement with Gordon. (2) Subsequently, in Gordon v. Drape Creative, Inc., Gordon sued those two companies for trademark infringement. (3)

Trademarks assist the public in identifying the source of a good, service, or product. (4) However, trademarks often develop their own social meaning beyond their source-identifying function, like "Google" or "Band-Aid." (5) Trademarks are frequently used for non-source-identifying purposes in expressive works such as song titles, video games, or greeting cards. (6) In these instances, overly broad interpretations of trademark rights may endanger First Amendment free speech values. (7) Additionally, in trademark infringement suits, courts inconsistently apply various tests, including the Rogers test and the likelihood of confusion test, to determine whether use of a particular trademark is infringement, adding another barrier to the protection of free expression. (8)

In Gordon v. Drape Creative, Inc., the United States Court of Appeals for the Ninth Circuit allowed Gordon to pursue his trademark claims against the greeting card companies. (9) But the court's holding restricts First Amendment freedom of expression and adds more confusion to an already murky area of law, causing internal tension in the Ninth Circuit. The Gordon decision also drives a deeper wedge into a circuit split on the issue of First Amendment protections within trademark law, making this issue ripe for the United States Supreme Court to review. This Note argues trademark laws should be interpreted to avoid collision with constitutional free speech doctrine, meaning confusion may need to be tolerated sometimes for the sake of preserving free speech. (10) Part II relays the facts and holding of Gordon. Part III provides legal background for the issues presented in Gordon. Part IV relates the Ninth Circuit's decision and reasoning in Gordon, and Part V comments on the implications of the Ninth Circuit's opinion.

II. FACTS AND HOLDING

In 2015, Plaintiff Christopher Gordon filed a trademark infringement action under the Lanham Act (11) against Defendants Drape Creative, Inc. ("DCI") and Papyrus-Recycling Greetings, Inc. ("PRG") ("Defendants," collectively) for using catchphrases from Gordon's popular YouTube video. (12) PRG, a greeting card manufacturer, is a subsidiary of DCI, a Missouri greeting card design studio. (13) Gordon is a comedian most known for his YouTube video titled The Crazy Nastyass Honey Badger (14) In his video, Gordon narrates National Geographic footage of a honey badger, using catchphrases such as "Honey Badger Don't Give a Shit" ("HBDGS") and "Honey Badger Don't Care" ("HBDC") to describe the honey badger's behavior. (15) In February 2011, Gordon began producing and selling items with the HBDC and HBDGs marks, including books, calendars, t-shirts, and mugs. (16) Shortly thereafter, Gordon copyrighted his narration in the YouTube video and registered HBDC with the United States Patent and Trademark Office ("USPTO") for various classes of goods, which included greeting cards. (17) However, Gordon never registered HBDGS with USPTO. (18)

In 2012, Gordon's licensing agent secured agreements with two companies, Zazzle, Inc. and The Duck Company, for honey badger themed products, including greeting cards. (19) That same year, Gordon's licensing agent met with PRG to discuss licensing honey badger themed greeting cards. …

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