Gordon v. Drape Creative and Papyrus Recycled Greetings, No. 16-56715 (9th Cir.) November 20, 2018.
Analysis of trademark infringement claims requires balancing of two competing principles, the Ninth Circuit observes. Trademark infringement cannot be so vigorously asserted as to suppress artistic expression. At the same time, trademark protections cannot be so lax as to cause the public to become confused as to the source of a product offered for sale.
Plaintiff Gordon had some success in video and comedy and in subsequent licensing of the catchphrase “Honey Badger Don’t Care.” With knowledge of plaintiff’s interest, defendants adopted the phrase for their own greeting card products. Notwithstanding that the parties had made use of the catchphrase in different media, the panel concluded that it could not be said that the similarity of design and use would not cause customer confusion as to the origin of a product employing the phrase. In such circumstances, summary judgment for defendants must be reversed.
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