The Ninth Circuit don’t care: successful Rogers defense reversed because plaintiff’s trademark is “artistic”

Gordon v. Drape Creative, Inc., No. 16-56715 (9th Cir. Jul. 30, 2018)The Ninth Circuit routinely invents some new epicycle for trademark defenses; here it unfortunately mushes together Rogers and transformativeness (absent the word itself, replaced with “artistic”).  There are a number of good reasons why a trademark right is not the same thing as copyright in an artistic work.  [See also: there’s no copyright in short phrases, and an artistic work can’t be a trademark for itself.]  This opinion unfortunately does not appreciate those distinctions, creating a sort of tradecopymarkright, the kind of thing Dastar cautioned against.Gordon is the creator of a popular YouTube video known for its catchphrases “Honey Badger Don’t Care” and “Honey Badger Don’t Give a S—.” He registered the former phrase as a trademark for various classes of goods, including greeting cards. Defendants made greeting cards using…

Read more detail on Recent Advertising Law posts –

This entry was posted in Advertising Law and tagged , , , , , , , , , , , . Bookmark the permalink.

Leave a Reply