Whether greeting card company Drape Creative Inc. unlawfully infringed on a trademarked phrase from a comedy video is one for a jury, the U.S. Court of Appeals for the Ninth Circuit said Nov. 20.
At issue are two phrases from Christopher Gordon’s viral youtube video The Crazy Nastyass Honey Badger: “Honey Badger Don’t Give a Sh-t” and “Honey Badger Don’t Care.” Gordon has a registered trademark and has created his own merchandise with the phrases.
The order revises the court’s July 30 decision, slightly revising reasoning but leading to the same result. The bulk of the changes appear in the section of the opinions discussing the level of creativity required to take a derivative work from simple copying to a new expressive work. .
The court in July said simply slapping a phrase on a card isn’t a creative expression that could have entitled Drape Creative to First Amendment protections from copycat accusations.
The court acknowledged in the revised opinion that constructing a card requires some creativity. But but those cards could still mislead consumers and result in trademark infringement, the court said.
The burden will be on Gordon at trial to prove that consumers are misled as to who is the source of the phrase on Drape Creative’s cards.
Sedgwick LLP represent Drape Creative. Krane & Smith represent Gordon.
The case is Gordon v. Drape Creative, Inc., 9th Cir., No. 16-56715, 11/20/18.