honey badger don't careIf you have not already seen the YouTube video featuring the now famous Honey Badger, you should. The video footage is originally from National Geographic, but Randall a.k.a. Christopher Gordon puts an entirely different spin on it with his unique narration. As a result, the catch phrase “Honey Badger Don’t Care” quickly became a national trend fueled by merchandising and additional narrated videos by Mr. Gordon.

Despite filing multiple trademark applications, it appears that Mr. Gordon may not have protected his brand as well as he thought that he did. A demand letter sent by Mr. Gordon, the registered owner of the well-known HONEY BADGER DON’T CARE trademark, appears to have misfired in its attempt to force Accoutrements, LLC to cease use of the mark. Accoutrements, LLC is a Washington-based supplier of gifts and novelties that recently began using the words “HONEY BADGER” and “HE DON’T CARE” on packaging for its new breath mints. Rather than comply with Gordon’s extensive demands, Accoutrements responded with a federal lawsuit, filed on August 22, 2014 in the Western District of Washington, seeking not only a declaratory judgment that its use of the wording does not constitute trademark infringement of Gordon’s trademark, but also that Gordon’s various trademark registrations should be cancelled. Accoutrements’ Complaint may be viewed here.

Accoutrements’ claim for a declaration of non-infringement is based on arguments that its use of the words “HONEY BADGER” and “HE DON’T CARE” on mint products does not create a likelihood of confusion in the marketplace with Gordon’s use of his trademark on his respective goods or give rise to a perception that there is some affiliation, connection or association between the parties and their products. Accoutrements points out that Gordon’s trademark is registered in connection with Christmas tree ornaments and decorations, talking dolls and plush toys, mugs, clothing, audio books in the field of comedy, parody and satire, and computer software. Accordingly, Accoutrements argues that its mint products are not related to any goods identified in Gordon’s trademark registrations insofar that Gordon’s registrations do not cover any food or beverage related goods.

Accoutrements further argues that Gordon does not own any federal trademark registrations for solely the wording “HONEY BADGER” and that there are various third-parties other than Gordon that own federal trademark registrations for HONEY BADGER marks for use in connection with different food and beverage products. As a result, Gordon’s trademark protection does not extend to food and beverage products.

Lastly, Accoutrements is asking the Court to cancel Gordon’s four trademark registrations because the mark was only used in an ornamental manner on the relevant products as opposed to the requisite source-identifying characteristic of trademarks. In other words, the mark is more similar to a design appearing on a product rather than as a brand name indicating the entity that actually produces or sells the product to the consuming public; wherein the latter is capable of protection under trademark law and the former is not.

While Accoutrements has a good chance of prevailing on its claim for a declaratory judgment, it will be interesting to see if Gordon’s cease and desist letter will jeopardize his federal registrations, which in turn could drastically impact the financial value of his product line. This case highlights the importance of making sure that your trademark registrations are in good order, that they cover the intended use(s) of your brand and confirming that you should not solely rely on the US Patent and Trademark Office’s granting of a registration as errors may occur during the registration process. It also demonstrates the need to perform substantial due diligence before sending a cease and desist letter so that you are aware of any weak spots in your case. Jolley Law Group, LLC can assist you with such services to help strengthen your brand and protect your trademarks. Unfortunately for Mr. Gordon, the outcome may prove that there are some things the Honey Badger should have cared more about.