Gordon v. Drape Creative, Inc., No. 16-56715 (9th Cir. 2018)Annotate this Case
The Ninth Circuit filed an order granting defendants' petition for panel rehearing, withdrawing the panel’s opinion, and ordering the filing of a superseding opinion. The panel also filed a superseding opinion reversing the district court's grant of summary judgment in favor of defendants in a trademark infringement suit over the "Honey Badger" catchphrases under the Lanham Act.
The panel held that, under the test in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), the Lanham Act applies to expressive works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression. In this case, defendants have not used plaintiff'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. The panel held that a jury could determine that this use of plaintiff's mark was explicitly misleading as to the source or content of the cards. Therefore, the panel reversed the district court's grant of summary judgment and remanded for further proceedings.
This opinion or order relates to an opinion or order originally issued on July 30, 2018.