Case 2:15-cv-04905-JFW-PLA Document 46 Filed 02/25/16 Page 1 of 7 Page ID #:581

1 SEDGWICK LLP
JAMES J.S. HOLMES, State Bar No. 126779
2 james.holmes@sedgwicklaw.com
KANIKA D. CORLEY, State Bar No. 223607
3 kanika.corley@sedgwicklaw.com
801 South Figueroa Street, 19th Floor
4 Los Angeles, CA 90017-5556
Telephone: 213.426.6900
5 Facsimile: 213.426.6921
6 Attorneys for Defendants, Drape Creative,
Inc.; and Papyrus-Recycled Greetings, Inc.
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8

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

10
11 CHRISTOPHER GORDON,
PLAINTIFF,

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Case No. CV 15-04905 JFW (PLAx)

Hon. Hon. John F. Walter, presiding

v.

13

14 DRAPE CREATIVE, INC.;

PAPYRUS-RECYCLED GREETINGS,
15 INC.; AND DOES 1 TO 10,
INCLUSIVE,
16
DEFENDANTS.
17

DRAPE CREATIVE, INC., AND

PAPYRUS-RECYCLED
GREETINGS, INC.S
COUNTERCLAIMS TO
PLAINTIFFS FIRST AMENDED
COMPLAINT

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22

Defendants Drape Creative, Inc., and Papyrus-Recycled Greetings, Inc.

23 (collectively Defendants or Counterclaimants), by and through their undersigned

24 counsel, hereby file their Counterclaims to the First Amended Complaint (ECF No. 32)
25 filed by Plaintiff Christopher Gordon (Plaintiff or Counterclaim-Defendant).
26 Counterclaimants, for their counterclaims allege as follows:
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PARTIES

1.

Counterclaimant Drape Creative, Inc. is a Missouri corporation. Drape

3 Creative, Inc. is a design studio that exclusively licenses greeting card designs for
4 Papyrus-Recycled Greetings, Inc.
5

2.

Counterclaimant Papyrus-Recycled Greetings, Inc. is an Illinois

6 corporation.
7

3.

According to Paragraph 4 of the First Amended Complaint, Counterclaim-

8 Defendant Christopher Gordon is an individual residing in Los Angeles, California.

9

JURISDICTION AND VENUE

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4.

Counterclaim-Defendant is subject to the personal jurisdiction of this

11 Court because he filed an action in this Court based on an alleged similar transaction or
12 occurrence; according to the First Amended Complaint, Counterclaim-Defendant is
13 domiciled and transacts business in California.
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5.

This Court has subject matter jurisdiction over the Counterclaims pursuant

15 to 28 U.S.C. 1331 and 1338.

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6.

Venue is proper in this Court under 28 U.S.C. 1391.

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7.

Counterclaimants create and sell greeting cards to consumers through

18 retailers, including, online transactions.

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8.

From 2012 to 2014, Counterclaimants created and sold greeting cards that

20 used the phrase, Honey Badger Dont Give a Shit as a communicative message.
21 Counterclaimants did not use the phrase, Honey Badger Dont Care on any product
22 sold.
23

9.

On July 18, 2014, Counterclaim-Defendant sent a cease and desist letter to

24 Counterclaimant Drape Creative, Inc.

25

10.

On June 30, 2015, Counterclaim-Defendant filed a lawsuit against the

26 Counterclaimants.
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11.

Upon information and belief, Counterclaim-Defendant published a video

28 on YouTube that featured preexisting video footage from National Geographic of a

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1 honey badger along with a voiceover from Counterclaim-Defendant (the YouTube

2 Video).
3

12.

On or about January 29, 2013, Counterclaim-Defendant obtained a

4 federally registered trademark on the USPTO principal register for the phrase, Honey
5 Badger Dont Care, Registration No. 4,281,472, for Class 21: Mugs.
6

13.

On or about October 15, 2013, Counterclaim-Defendant obtained a

7 federally registered trademark on the USPTO principal register for the phrase, Honey
8 Badger Dont Care, Registration No. 4,419,079, for Class 09: Audio books in the field
9 of comedy, parody and satire; computer application software for mobile phones,
10 portable media players, handheld computers, namely, software for playing games.
11

14.

On or about October 15, 2013, Counterclaim-Defendant obtained a

12 federally registered trademark on the USPTO principal register for the phrase, Honey
13 Badger Dont Care, Registration No. 4,419,081, for Class 28: Christmas tree
14 ornaments and decorations, talking dolls and plush toys.
15

15.

On or about April 1, 2014, Counterclaim-Defendant obtained a federally

16 registered trademark on the USPTO principal register for the phrase, Honey Badger
17 Dont Care, Registration No. 4,505,781, for Class 25: Clothing, namely, t-shirts, tank
18 tops, one piece garment for infants and toddlers, long-sleeve shirts, caps.
19

16.

Between the years of 2012 and 2014, Counterclaim-Defendant did not

20 obtain a federally registered trademark on the USPTO principal register for the phrase,
21 Honey Badger Dont Care, for the class of goods that includes greeting cards.
22

17.

Between the years of 2012 and 2014, Counterclaim-Defendant did not

23 obtain a federally registered trademark on the USPTO principal register for the phrase,
24 Honey Badger Dont Give a Shit, for any class of goods.
25

18.

Counterclaim-Defendant purports to own trademark rights in the phrase

26 Honey Badger Dont Give a Shit for use on greeting cards even though
27 Counterclaim-Defendant neither registered the phrase, nor do Trademark Registration
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1 Nos. 4,281,472, 4,419,079, 4,419,081, 4,505,781 apply to the class of goods pertaining
2 to greeting cards.
3

COUNT ONE

DECLARATION OF NON-INFRINGEMENT

19.

Counterclaimants repeat and reallege the allegations set forth in the

6 previous paragraphs of the Counterclaims with the same force and effect as if set forth
7 fully herein.
8

20.

In the First Amended Complaint, Counterclaim-Defendant alleges that

9 Counterclaimants have infringed his purported trademarks in the phrase Honey Badger
10 Dont Care. Counterclaim-Defendant, however, does not own any intellectual property
11 rights in the phrase Honey Badger Dont Care for use in greeting cards.
12

21.

Counterclaimants did not use the phrase Honey Badger Dont Care on

13 their products.
14

22.

In the First Amended Complaint, Counterclaim-Defendant alleges that

15 Counterclaimants have infringed his purported trademarks in the phrase Honey Badger
16 Dont Give a Shit. Counterclaim-Defendant, however, does not own any intellectual
17 property rights in the phrase Honey Badger Dont Give a Shit.
18

23.

There is an actual and justiciable controversy between Counterclaimants

19 and Counterclaim-Defendant with respect to Counterclaimants use of the phrases,

20 Honey Badger Dont Care and Honey Badger Dont Give a Shit.
21

24.

Counterclaimants have not used any trademark registered by

22 Counterclaim-Defendants on any product.

23

25.

Counterclaimants have not marketed, advertised, distributed, offered for

24 sale, or sold any of the goods listed in Trademark Registration Nos. 4,281,472,
25 4,419,079, 4,419,081, and 4,505,781 featuring the phrase, Honey Badger Dont Care.
26

26.

No likelihood of confusion exists with respect to Counterclaimants use of

27 the phrase Honey Badger Dont Give a Shit in connection with greeting cards.
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27.

Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. 2201 et

2 seq., Counterclaimants request that this Court enter a judgment that Counterclaimants
3 use of the phrase Honey Badger Dont Give a Shit does not infringe any rights held
4 by Counterclaim-Defendant.
5

COUNT TWO

CANCELATION OF TRADEMARK REGISTRATION NOS. 4,281,472;

4,419,079; 4,419,081; 4,505,781

28.

Counterclaimants repeat and reallege the allegations set forth in the

9 previous paragraphs of the Counterclaims with the same force and effect as if set forth
10 fully herein.
11

29.

This Counterclaim seeks cancelation of Counterclaim-Defendants

12 Trademark Registration Nos. 4,281,472, 4,419,079, 4,419,081, and 4,505,781, with the
13 United States Patent and Trademark Office.
14

30.

This Court may order the cancelation of registrations, in whole or in part

15 pursuant to 15 U.S.C. 1119.

16

31.

Counterclaim-Defendants use of the phrase, Honey Badger Dont Care

17 on the various goods identified in Trademark Registration Nos. 4,281,472, 4,419,079,

18 4,419,081, and 4,505,781, with the United States Patent and Trademark Office, is
19 merely ornamental.
20

32.

Counterclaim-Defendants uses of the phrase, Honey Badger Dont Care

21 do not identify the source of the goods or serve any other trademark function.
22

33.

Counterclaim-Defendant cannot show that consumers of the goods and the

23 general public associate the phrase, Honey Badger Dont Care with Counterclaim24 Defendant or any single person or entity. Counterclaimant cannot establish secondary
25 meaning or that the phrase is used as, or is understood by the public to be, a trademark.
26

34.

Counterclaim-Defendant was not entitled to register the Honey Badger

27 Dont Care mark.

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35.

Trademark Registration Nos. 4,281,472, 4,419,079, 4,419,081, and

2 4,505,781 have caused injury to Counterclaimants because the registrations are prima
3 facie evidence of the validity of the registrations, Counterclaim-Defendants ownership
4 of the mark shown in the registrations for the goods claimed by the registrations, and
5 Counterclaim-Defendants exclusive right to use the registered mark in association with
6 the goods claimed by the registrations, when, in fact, Counterclaim-Defendant is not
7 entitled to such rights.
8

36.

Accordingly, the Court should cancel U.S. Trademark Registration Nos.

9 4,281,472, 4,419,079, 4,419,081, and 4,505,781.

10

PRAYER FOR RELIEF

11

WHEREFORE, Counterclaimants, Drape Creative, Inc., and Papyrus-Recycled

12 Greetings, Inc., respectfully request that this Court rule or otherwise enter judgment
13 against Counterclaim-Defendant Christopher Gordon:
14

A.

Declaring that Counterclaimants use of the phrase, Honey Badger Dont

15 Give a Shit in its descriptions of its greeting card products does not infringe any
16 trademark rights held by Counterclaim-Defendant;
17

B.

Canceling Federal Trademark Registration Nos. 4,281,472, 4,419,079,

18 4,419,081, and 4,505,781;

19

C.

Awarding Counterclaimants their costs in this action, including attorneys

20 fees; and,
21

D.

Granting such other further relief as this Court deems just and proper.

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DEMAND FOR TRIAL BY JURY

In accordance with Fed.R.Civ.P. 38(b), Counterclaimants, Drape Creative, Inc.,

3 and Papyrus-Recycled Greetings, Inc., hereby demand a jury trial on all issues triable to
4 a jury.
5
6 DATED: February 25, 2016
7

Respectfully submitted,
SEDGWICK LLP

8
9
By:

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11
12
13

/s/ Kanika D. Corley

JAMES J.S. HOLMES
KANIKA D. CORLEY
Attorneys for Defendants, Drape Creative,
Inc.; and Papyrus-Recycled Greetings, Inc.

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