U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Honey Badger Cares About Its Trademarks

If you don't know the honey badger, don't worry. It doesn't care, and that's what made it famous.

"Honey Badger Don't Care" became one of America's hottest brands after Christopher Gordon created a popular YouTube video that went viral. In the National Geographic video, Gordon adds his comedic commentary about how "Honey Badger Don't Care" as the beast attacks and eats just about anything.

In Gordon v. Draper Creative, Inc., Gordon attacked because the defendants used his catchphrases on greeting cards. So, if you care, here's what the U.S. Ninth Circuit Court of Appeals had to say about it.

Honey Badger

Gordon, known creatively as Randall, uploaded the video in 2011. It shows the honey badger taking honey from a swarm of bees, chasing jackals twice its size, and eating a cobra -- even as the cobra bites back.

"Honey Badger don't care," he narrates. "Honey Badger don't give a s---."

He registered "Honey Badger Don't Care" with the United States Patent and Trademark Office, and owns common law rights in "Honey Badger Don't Give a S___." His company, Honey Badger, LLC, entered licensing agreements with companies to make badger-themed products, including greeting cards.

In June 2012, however, Draper Creative, Inc. and Papyrus Recycled Greetings, Inc. started selling greeting cards with the Honey Badger marks and catch phrases. Gordon sued, but a trial judge granted summary judgment for the defendants saying the cards were protected as expressive works.

Expressive Works

Just in time for the holidays, the Ninth Circuit reversed. The appeals court said the Lanham Act applied to expressive works "only where the public interest in avoiding consumer confusion outweighs the public interest in free expression."

The appeals panel sent the case back to the trial court to sort out whether it was misleading. According to FindLaw's podcaster Jeremy Winston Conrad, the plaintiff will have to show that consumers are confused about the source of the marks.

Of course, the honey badger don't care. Only Gordon does.

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