Gordon v. Drape Creative, Inc., No. 16-56715 (9th Cir. 2018)Annotate this Case
The Ninth Circuit reversed the district court's grant of summary judgment for defendants in a trademark infringement action over the "Honey Badger" catchphrases under the Lanham Act. The panel applied the test in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), to balance the competing interests at stake when a trademark owner claims that an expressive work infringes on its trademark rights. The panel held that the Rogers test was not an automatic safe harbor for any minimally expressive work that copies someone else's mark. In this case, a jury could determine that defendants did not add any value protected by the First Amendment but merely appropriated the goodwill associated with plaintiff's mark. Defendants have not used another’s mark in the creation of a song, photograph, video game, or television show, but have largely just pasted plaintiff's mark into their greeting cards. Therefore, the panel remanded for further proceedings.
The court issued a subsequent related opinion or order on November 20, 2018.