Back in 2011, a video titled ‘The Crazy Nastya** Honey Badger” was posted on YouTube. You may have heard of it.
After his viral video racked up millions of views and turned the previously obscure mammal into a cultural icon, Gordon began cashing in. There were honey-badger-themed wall calendars, mouse pads and plush toys, not to mention the standard mugs and shirts. He got a book deal and was reported to be working with a production company to develop a TV show called “Honey Badger U,” although that never materialized.
In the meantime, however, the honey badger became the center of a long-running trademark battle centering on the video’s most memorable catchphrases: “Honey Badger Don’t Care” and “Honey Badger Don’t Give a S—.”
After Gordon lost a first round in a U.S. district court, the U.S. Court of Appeals for the 9th Circuit on Monday reinstated his lawsuit against the companies that he says infringed on his trademark.
As the appeals court’s ruling notes, Gordon had trademarked the phrase “Honey Badger Don’t Care” and entered into licensing agreements with the Duck Company and Zazzle, which currently sells more than 9,000 honey badger products, including a pair of socks that show a honey badger dabbing.
Then, in 2012, Papyrus-Recycled Greetings, a division of American Greetings, started selling several honey badger greeting cards, including one that said “Honey Badger and me just don’t care. Happy birthday.”
Several other cards featured the phrase “Honey Badger Don’t Give a S—,” which Gordon has not trademarked.
In June 2015, Gordon filed a lawsuit alleging trademark infringement. The U.S. District Court for the Central District of California granted summary judgment to the greeting card company, saying the cards were expressive works protected by the First Amendment. Gordon appealed.
On Monday, the appeals court reversed the lower court’s decision, allowing his lawsuit to continue.
In an opinion published Monday, the three-judge panel said that Gordon’s lawsuit against Drape Creative and Papyrus-Recycled Greetings presents a question that should be tried before a jury: Did the greeting cards add any artistic value that would be protected by the First Amendment, or did they simply appropriate the goodwill associated with Gordon’s trademark?
In the law, “goodwill” refers to the inherent value of a trademark as a result of its recognition by consumers. A company that simply appropriates that goodwill by using the name without adding any value to it can be found to have infringed the trademark.
“A trademark owner can stop others from using its trademark in order to prevent the public from being confused about the source of the goods or services,” explains the International Trademark Association.
Drape Creative’s president testified that he had designed the cards but couldn’t remember what had inspired them, the opinion says. He also claimed that he had never heard of a video featuring a honey badger.
“It cannot be that defendants can simply copy a trademark into their greeting cards without adding their own artistic expression or elements and claim the same First Amendment protection as the original artist,” Judge Jay S. Bybee wrote in the opinion, joined by Judges Danny J. Boggs and Paul J. Watford.
Bybee drew a parallel to Andy Warhol’s famous paintings of Campbell’s soup cans. “Warhol took Campbell’s mark and added his own artistic expression. No one seeing Warhol’s work would think he was merely trying to appropriate the goodwill inhering in Campbell’s mark; no one thought Warhol was selling soup, just art.”
Daniel Reback, who represents Gordon in the trademark dispute, told the National Law Journal that his client looks forward to proceeding with the lawsuit. Attorneys for the defendants have yet to comment on Monday’s ruling.
In the post-Honey Badger era, it’s become increasingly common for large corporations to appropriate viral memes for their own marketing purposes. Critics argue that the creators of these memes, who are often teenagers and frequently people of color, rarely have the opportunity to monetize their work.
“Want to profit off your meme? Good luck if you aren’t white,” read a 2017 headline in Wired magazine after Kayla Lewis, who goes by Peaches Monroee on social media and is credited with creating the phrase “eyebrows on fleek,” launched a GoFundMe campaign asking for donations so that she could start her own cosmetics line. Before launching the campaign, the magazine noted, Lewis hadn’t made any money off the phrase, even after companies such as IHOP, Taco Bell and Forever 21 used it.
And meme creators have only a small window of time to monetize their viral fame before the Internet moves on to something new, as Reback acknowledged during his oral arguments before the appeals court.
“My client is a creative genius,” he said. “He had a bolt of lightning, 86 million views on YouTube, was basically a celebrity around the country for about three years, and he had a brief window of time to strike while the iron was hot on that. He should be the one — not the defendants in this case — to capitalize on that.”
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