Honey Badger Don't Care, but the Legal Community Does

Abstract

The “Honey Badger” became a pop culture sensation in 2011 when a man named Christopher Gordon, using the pseudonym Randall, added his voiceover commentary to National Geographic footage of a badger foraging for live animals in its natural habitat. The roughly three-minute YouTube video now has over 90 million views and over 40,000 comments. Gordon’s mock-umentary popularized the catchphrase “honey badger don’t care,” making it a “cultural icon” and “viral sensation.” Between 2013 and 2016, Gordon acquired five different federal trademark registrations for the phrase in connection with a variety of goods, including clothing, toys, mugs, mobile phone applications, and bumper stickers. His licensees sell over 9,000 Honey Badger-themed items, including greeting cards, at major retailers like Wal-Mart, Target, and Urban Outfitters. Even celebrities like Taylor Swift and Anderson Cooper have quoted his video narration, which he registered with the U.S. Copyright Office. He has appeared on television news programs, and his book, Honey Badger Don’t Care: Randall’s Guide to Crazy, Nastyass Animals, is available from Amazon and other booksellers. The trademark controversy arose in 2015 when Gordon sued on behalf of a non-licensed greeting card use. Gordon has a federally registered “honey badger don’t care” trademark associated with International Class 16, which includes stationary. Back in 2012, American Greetings, the parent company of the defendants, was in talks with Gordon to license his trademark for greeting cards, but they did not reach an agreement. Nonetheless, the defendants started selling one greeting card with “Honey Badger and me just don’t care,” as well as six cards with a related Honey Badger catchphrase, “honey badger don’t give a s---.” This related catchphrase is also well-known and was featured in Gordon’s original video, but he does not have a federally registered trademark for it. Gordon filed a trademark infringement lawsuit in the U.S. District Court for the Central District of California. The defendants claimed that their use was fully protected under the First Amendment, and the district court granted summary judgment for the defendants. The Court held that Rogers v. Grimaldi—the seminal case protecting expressive uses of trademarks in art—barred the infringement claim as a matter of law. In July 2018, the Ninth Circuit reversed summary judgment, holding there were triable issues as to whether the defendants’ greeting cards passed the Rogers test. This was the first time the Ninth Circuit had ever rejected summary judgment in a case applying Rogers. The decision evoked considerable criticism: the defendants submitted a petition for rehearing, and thirty-seven well-respected trademark professors wrote a collective amicus brief supporting rehearing and criticizing the Ninth Circuit’s rationale. The Court accepted rehearing and in November 2018 released an updated opinion retaining the same conclusion but with a modified rationale. This “must-see trademark litigation” raises important concerns about how to achieve a balance between free speech and brand exploitation. Part I overviews the evolution of the Rogers test. Part II summarizes the Ninth Circuit’s ruling in the Honey Badger case, Gordon v. Drape Creative, Inc. Part III evaluates scholarly reactions to the ruling as well as the decision’s broader implications for trademark law and free speech. This Article concludes that while the public’s right to free expression is important, the free-speech rights of trademark owners are equally important to protect. Allowing infringement cases to proceed to trial does not necessarily compromise free speech, and while dismissal via summary judgment may be appropriate in some instances, this was a borderline case complicated enough to merit a jury trial.