Posted on August 04 2018
Where do I even start?
So, full disclosure I was one of the nearly 89million views of,
The “Honey Badger doesn’t give a sh!t”
Also true story a few years ago I got a call from my child’s school, this is how that call went, for obvious reasons the names and school redacted:
School [name redacted] Principal: Hi, I am calling today to discuss a matter about your child...
Me: okay, who did [name redacted] punch because if it was that little f*cker [name redacted] he’s been egging [my child’s name redacted] for months and I told him that if [little f*ckers name redacted] hits my child, I gave my child permission to hit [little f*ckers name redacted] back and hit him hard.
School [name redacted] Principal: oh I’m not calling about that, there was an incident during class today and it involved “the honey badger”.
Me: okay. Please provide me some context...
School: does your child have access to YouTube?
School: well during class there was a discussion about predators and preys and “Darwin’s survival of the fittest”.
Me: Let me stop you right here...did [my child’s name redacted] say “the honey badger doesn’t give a shit”.
School: Yes and then uncontrollable laughter ensues.
Me: and let me guess again, that caused the entire classroom to erupt in laughter, correct?
Me: thank you for calling and bringing this to my attention,goddamnit I told [my child’s name redacted] that they can’t talk about this in school. I will deal with [my child’s name redacted] and have a very serious conversation about appropriate and inappropriate comments.
School: laughter, well to be honest at least [my child’s name redacted] didn’t say the f word.
Me: I suppose that’s the silver lining, again thank you for calling
As punishment I made my child write the following sentence 100 times, my child was not amused and my retort was: OMFG you promised me that you’d never repeat the Honey Badger YouTube video in public. Now write the goddamn sentences before I run over your iPad with your motorized scooter. For the record my kid has excellent penmanship because that PITA writes a lot of sentences.
I will not say “the honey badger doesn’t give a shit” in school.
Don’t play with his Trademarks
In 2011 Christopher Z Gordon aka “Randall” applied and was granted trademarks, for:
Honey Badger Don’t Care™️, see United States Patent and Trademark Office, TESS file. Link found here.
And to further punctuate the importance of TradeMarks, Gordon’s ™️ No 85449925 covers the following:
016 - Paper, cardboard and goods made from these materials, not included in other classes; printed matter; bookbinding material; photographs; stationery; adhesives for stationery or household purposes; artists' materials; paint brushes; typewriters and office requisites (except furniture); instructional and teaching material (except apparatus); plastic materials for packaging (not included in other classes); playing cards; printers' type; printing blocks. - Paper, cardboard and goods made from these materials, not included in other classes; printed matter; bookbinding material; photographs; stationery; adhesives for stationery or household purposes; artists' materials; paint brushes; typewriters and office requisites (except furniture); instructional and teaching material (except apparatus); plastic materials for packaging (not included in other classes); playing cards; printers' type; printing blocks.
In June of 2015 Gordon sued Drape Creative Inc. and Papyrus-Recycled Greetings Inc. Essentially arguing that these greeting card companies caused financial injury to Gordon the rightful Trademark Owner.
After nearly 16 months of litigation in October of 2016 the District Court dismissed the case
Accordingly on November 16, 2016 Gordon filed a notice of Appeal to the Ninth Circuit Court of Appeals. No open source link to his appeal but this PACER link will take you to the 17page notice. See (paywall) link, found here.
On July 31, 2018 the Ninth Circuit Court of Appeals in a published and unanimous Opinion: reversed the lower (District) Court’s October 2016 ruling and remanded Gordon’s case back to the District Court. You can read their 25 page Opinion, here.
The panel reversed the district court’s grant of summary judgment in favor of defendants in a trademark infringement suit under the Lanham Act.
Under the Rogers test™️, the Lanham Act applies to expressive works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression. This balance will normally not support application of the Act unless the use of the mark has no artistic relevance to the underlying work whatsoever or explicitly misleads consumers as to the source or the content of the work.
The Ninth Circuit Court of Appeals noted on page 9 of their Opinion that the greeting card President:
President testified that he drafted all of the cards in question but could not recall what inspired the cards’ designs. He claimed to have never heard of a video involving a honey badger...
The Lanham Act, 15 U.S.C. § 1051 et seq., “creates a comprehensive framework for regulating the use of trademarks and protecting them against infringement, dilution, and unfair competition.”
The Act’s two underlying purposes are to ensure that;
(1) “owners of trademarks can benefit from the goodwill associated with their marks” and
(2) “consumers can distinguish among competing producers.”
Also see page 22 which reads in part (personally speaking this is where the defendants “intent” is crystal clear and makes their subsequent argument about first amendment and artistic impression vs freedom so unbelievably shady. No the defebdants knew what they were doing and they got caught red handed):
Gordon has presented evidence that he sold various products bearing his mark, including greeting cards; that his agent met with a representative of defendants’ parent corporation to discuss a possible licensing deal; that shortly thereafter, defendants started developing their own line of greeting cards even though their parent corporation had rejected the proposed licensing deal; and that defendants’ president, who drafted the cards, could not recall what inspired them. Moreover, the cards themselves use Gordon’s catchphrases in different ways, and a jury could possibly conclude that defendants used the phrases for artistic reasons on one or more cards but not on others. (emphasis added)
The Ninth Circuit Concludes the following (remember the defendants opened the door to the First Amendment Right argument where they may have been better off with the “artistic use” argument):
.. district court should instruct the jury on the likelihood-of-confusion test, as in any infringement case. In addition, the court should instruct the jury that defendants have shown that their greeting cards are protected under the First Amendment and that Gordon must therefore prove an additional element to succeed on his claim.
The jury may only find for Gordon if he proves by a preponderance of the evidence that defendants’ use of his mark is (1) not artistically relevant to their greeting cards or (2) explicitly misleading as to the source or content of the cards.
Defendants’ use of the mark is explicitly misleading only if it explicitly misleads consumers into believing that Gordon sponsored or is somehow associated with defendants’ cards. Simply using the mark is not enough. There must be something else about
So apparently the Honey Badger DOES give a shit, as it relates to the Trademarks Gordon holds and tortious injury. I hope the District Court heads the Ninths Circuits instructions itemized on page 24.
™️ Rogers v. Grimald was a 1989 landmark case, that established what’s now known as the “Roger’s Test”; which essentially protects the use of Trademarks vs Artistic “freedom of expression”.
The Second Court of Appeals noted the following:
“This appeal presents a conflict between Rogers' right to protect her celebrated name and the right of others to express themselves freely in their own artistic work. Specifically, we must decide whether Rogers can prevent the use of the title Ginger and Fred for a fictional movie that only obliquely relates to Rogers and Astaire."
See the law isn’t boring in fact it’s down right awesome, but this case beyond its comical aspect is a very solid case in our Judicial System and Trademarks, as in “intellectual property and rights”.
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