## Facts

- Christopher Gordon created the viral “Honey Badger” video and used catchphrases including “Honey Badger Don’t Care,” for which he obtained a federal trademark registration covering, among other goods, greeting cards.
- Gordon commercially licensed the mark for greeting cards through third parties.
- Drape Creative, Inc. and Papyrus-Recycled Greetings, Inc. designed and sold greeting cards incorporating Gordon’s “Honey Badger” phrases, including close variations, without authorization.
- Gordon alleged the use on greeting cards was likely to confuse consumers into believing the cards were sponsored by, affiliated with, or authorized by him.

## Issues

1. Whether the defendants’ greeting cards were expressive works such that the Rogers v. Grimaldi framework governed the Lanham Act infringement claims.
2. Whether the use of “Honey Badger Don’t Care” and similar phrases had sufficient artistic relevance to the greeting cards to satisfy Rogers’s first prong.
3. Whether there was a triable issue that the use was “explicitly misleading” as to source or content under Rogers’s second prong, such that summary judgment was improper.

## Decision

- The court treated the greeting cards as expressive works and applied the Rogers test.
- The court held the first Rogers prong (artistic relevance) was satisfied as a matter of law.
- The court held a reasonable jury could find the defendants’ use of Gordon’s mark on greeting cards was explicitly misleading under the second Rogers prong.
- The court reversed summary judgment for defendants and remanded for further proceedings.

## Legal Principles

- For expressive works, the Lanham Act generally applies only if the use of the mark (1) has no artistic relevance to the work, or (2) explicitly misleads consumers as to the source or content of the work.
- “Artistic relevance” is a low threshold; minimal relevance to the work’s expressive content suffices.
- “Explicitly misleading” is not limited to overt claims of endorsement; it may be shown where the defendant’s use functions as a source-identifying designation, including where traditional likelihood-of-confusion considerations support an inference of misleadingness.
- Rogers is not a categorical shield for minimally expressive products that reproduce another’s mark on the same type of goods in a manner a jury could view as appropriating the mark’s goodwill.

## Conclusion

The Ninth Circuit held that although the greeting cards met Rogers’s artistic-relevance requirement, the record permitted a jury to find the mark use explicitly misleading; therefore, the Lanham Act claims could proceed and summary judgment for defendants was reversed.


Gordon v. Drape Creative, Inc., 909 F.3d 257 (9th Cir. 2018)