video which has been viewed more than eighty six million times on you tube the only reason the only reason defendants made their seven greeting cards in this case and the only reason why they used my client's mark in those seven greeting cards was and you did not try and trademark the the other controversial statement will say i was struggling with how to refer to that phrase and what that's correct there's really two pieces of evidence that i think very reason you didn't trademark that one is well  i was not you know i was not counsel of play time but boarded what you did use it in the video your client did use it in the video that i read i recall that's correct and not only does he use both phrases in the video but the abundance of evidence mid shows that those are the two most popular phrases from the video there have been articles throughout the country in very popular magazines in newspapers and in internet internet articles throughout the country that link those two phrases with my client those are my clients two key phrases in fact you tube commemorated one of their anniversaries the whole rogers doctrine would seem to indicate that that alone isn't enough the whole rogers doctrine is about being able to use modify etc trademark phrases correct than not but there are significant limitations on that doctrine and i think in light of the court's recent decision and empire you know some of some of the army and arguments in our brief are no longer apt however three remain one defendant's greeting cards are not expressive works under the rogers test and justice by the european union brown aptly noted that not every book not every play can be considered an expressive work you have to look at each work on its cover by itself and i respectfully submit that looking at the pens having greeting cards in this case they are not expressive works at and how could it not be expressive i don't recall saying in brown but that books and plays couldn't be expressive would seem to be to be to be the core of a first amendment expression but how can we not say that this is expressive your client actually trademarked a phrase and he's here today because he thinks that those words that those particular words in that sequence are of commercial and literary value there are people who want them on t shirts that people want them greeting cards there are people who view videos with those with those phrases and it's precisely because it was a it was a clever phrase it was a clever phrase but i think the question is is whether or not defendant seven greeting cards in this case are expressive works in just one greeting card the critter card which i referred to at length in our brief i don't there's not a plot here i can't decipher a plot i don't know there's no characters there's no dialogue take that then wouldn't your car not be entitled to first amendment protection in  what sense are they more expressive in these cards or does it not matter to you whether your cards that first amendment it's not the issue before the court and we're not suing over that well but i mean we we do try to develop doctrine  yes your honor to be honest i don't know whether or not the first amendment would in play with my client's card to depends what cards we're talking about what are all my client's cards that you have a dialogue or a character or plot in this cards but my point simply is that the defendants cards in this case they just say it's your birthday and then they can you say that the government could just ban the sale of those cards that would be perfectly permissible i don't know not about banning the sale but what they should allow i don't want to couldn't if it's not  cards are not entitled to first amendment protection what would stop the government from banning the sale of so i would just i think your argument makes no sense on that point one of the other ones that you have you said you have three that survive empire i want to move on to next year to moving on to the artistic relevance prong there is no artistic relevance whatsoever to using my client's trademark in these cards mr draper out is that position was in this or trait tom trade created all the seven cards and he testified he's the sole person responsible for draitser credibility because he's the sole person who created the text in these cars and when asked is that position why did you use my client mark he replied i don't remember but it's a question his artistic relevance don't we get that by looking at the documents not as to whether somebody is or is not a good guy who brought them up well that may be one way that maybe one way or another way as i understand the ninth circuit doctrine is that the relevance between the cards here there is no artistic relevance towards using my client's trademark in a car that says the election is coming what does my client's trademark phrase honey badger don't care have to do with an election there's a somebody somebody i don't know whether it's in the record use the phrase aggressively apathetic which sounds kind of odd but isn't that sort of artistic the honey badger is a tough one pair were the isn't division the only reason to use that phrase would be to capitalize off the ca in popularity of my client's market isn't isn't that particularly pungent or poignant i'm not sure i could come up with a better for i think there are many other to express to express the idea  of being as aggressively empathetic but going back to justice lawford's comment about this being a jury question i think the case that's most on point is from your circuit your honor the park's case and its six circuit in the six circuit outcast the music d use rosa parks his name for the title of her song and just like our case outcast testify that the composers did not intend for the song to be about ms parks and mr draper says well he used the mark without any intention of referring to mr gordon whatsoever and also the lyrics of the song and rosa parks were not about her and it's the same exact case here in the six circuit said that suggested that outcast had chosen an irrelevant title that quote unquestionably enhanced the song potential sale to the consuming public in a reasonable person could find that the song rosa parks failed the rogers test because the highly questionable artistic relevance to the title of rosa parks to the song and i think that's precisely our case where this is a jury question minimum considering one mr drapes testimony and two just from looking at the cards the cards are not about my client mr draper has disavowed any relevance whatsoever towards my client and i think parkes is on point  from the sixth circuit that at minimum this deserves to be put in front of a jury and mr draper should be put on the witness stand he can explain to the jury and my client should have his day in court on this issue i mean that seems perfectly sensible terms of a position to take but what would the jury instructions look like that's what i struggle with because we have so few cases in which this issue has been pointed to a jury so do you have a sense as to what i guess you'll feel try this case i guess i don't know what an affirmative defense and the defendant would have the burden on that on that issue why and grant it won't because it's an affirmative defense and it's not my burden is to prove my case the likelihood of that the rogers test essentially supplants the burden that you would otherwise bear to prevail on your claim right it's just it's kind of i mean we're importing this new test that supplants the test that would apply let's say were are going about soap or something you know something on first amendment protected product and so i would have assumed that no you would still bear the burden of showing that there was no artistic relevance i don't buy i think it's an interesting question i don't think it's settled from the case law and i would submit my position would be that it's their burden as an affirmative defense they would have to show some artistic relevance i would just sort of cut you off but so what what exactly would you have to prove in your case in chief my case in chief i would have to prove like any trademark case the registered trait of validity of the trademark in a likelihood of confusion and if the defense wants to put forth an affirmative defense it's their burden but the likelihood of confusion test is supplanted by roger's right that's what i'm confused about your position here assuming that it's we're talking about an expressive work yeah well so i'm let's say you when we say this what you lose on the question whether this is an expressive work we say that this clearly is expressive it's protected by the first amendment so therefore rogers comes into play right and we say there's a jury question as to whether there was any artistic relevance case goes to trial that's what i'm asked why i would have a soon that you had thought through far enough to say yes and then here's what my case in chief would look like here's what i would have to prove here is what the jury would be instructed on sounds like you have kind of thought through those extra steps assuming there's a reversal with the here it does seem to me that it might well be the defendants who are in a who are perfectly free to waive any claims about the rogers test as if they don't raise the what the rogers test they they forfeited it right tiredly correct your own and so if they're going to raise the roger said well we have a first amendment right to do this but it does seem that that might fit the category of an affirmative defense which case it might well be their burden to show the artistic relevance that's my position exactly i'm not sure makes a whole lot of difference who's got the burden on that one because because they have raised it if i could briefly point out the empire decision was recently decided and it is clearly not dispositive here the facts and empire are so different from this case the facts an empire the alleged infringer was allowed to use the word empire which is just a common english word that the court pointed out honey badger don't care is not a common english word that's my client's catchphrase that he made famous in his popular video because it is really his creative genius this is not a common in the short like the word empire also an empire the show's setting was in new york that's the empire state that's clearly relevant third the the whole show of empire is about  music and entertainment conglomerate called empire enterprises using the name empire as the court pointed out it's just a it's a figure of way of talking about what the show is about that is entirely not this case the critter card has no theme at all i can't decipher it mr drift and testify with that the it was about like i said honey badger don't care is not a popular english word it's not a popular phrase only popular because my client's catchphrase that he thought of any sort a lot of good spearing that phrase the facts of empire are completely distinguishable and finally moving on to the explicit explicitly misleading pronk i see only have twenty seconds or so i would submit that on this credit card the reference is to my client's video just killed the cobra that's lifted directly from my client's narration rolling and firing and that's also lifted directly from my client's video these are his words essentially that those are clear in explicit misleading indications of my client that he's affiliated with this card i see my time is up so i triggers the rogers toss rogers test has a very low threshold for artistic relevance which we use for them because let me tell you what the problem is i i i think i agree with you that there is something expressive here i don't think we'd be here fighting if this wasn't an interesting phrase i don't think they would have had you know north of eighty million views of this video if there had been something clever about pairing those phrases with with the video they were obviously able to sell some greeting cards unlicensed t shirts and other and other things what bothers me about about what your client did here in contrast to the other cases that have been decided out of the rogers test here is i don't see any value a in brown you've got it there yes they did use jim brown's number a name in his and his identity with that with the cleveland browns but it was incorporated into a much much larger work in which there was a lot of other creative things going on in empire where yes we're using a name it's has been woven into that i don't see anything here except just taking their phrase and putting on a badger on the card so where's the value added value and it has to be taking the context of the vehicle with which the expressive work is delivered here it's a greeting card you don't have the luxury of a season of television within which to reveal a longstanding plot or to have music you have a quick you know an item that has to quickly get to the reader's attention to the recipients attention and to convey that expressive idea in basically two pages right it was just it was just taken i'm sorry if you just took  cards a year and does that seem credible to you that i think maybe perfectly credible but he doesn't remember doesn't seem perfectly credible but he came up with that independent of mr randall's video we have to remember that mystery gets from the greeting card company these pitch ideas and then from those pitch ideas creates a card and that is what needs to be protected on the first amendment is mr dreyfuss idea on the card in the card and the way he portrays a card to let people know on their birthday hey we don't give a hoot what a pussy what if we had a what if you had a greeting card of a can of coke a photograph of a can of coke and inside  said you deserve a break today happy birthday i would still say that that is perfectly protected under the rogers doctrine about perfectly protected but i want the difference between that case in this case because there is no coke has a trademark in there can coke is trademark in there saying there is no trademark in the scene that was utilized in this case so you have an idea that you can express and similarly andy warhol with his campbell's soup can and you open it up and you think it's like happy happy birthday card and you get this sarcastic saying in there it's a cute he has humor in that way too to putting it into a context other than th videotape within which so he was not using the same honey badger pictures that your adversary's client was he created the pictures on there wasn't the photograph from you rational arguments but why aren't they why isn't this a jury question i guess that's where i get stuck on your in terms of your position before us because in order to have the full first amendment protection the rogers test came into play and that's why you get out of the sleep craft confusion right dialogue that you would have ordinarily in a case that would go to a jury so we want a core to come in and say in this balancing test between the first amendment and the use of a trademark we say that in this particular case the first moment has to trump the trademark protection and that's why it's not really a don't ever ever that's what i'm trying to figure out because if you're saying that there are cases that are close enough that they can go to a jury this strikes me as one that's like going to fall in that category are you taking the position that this is always a question of law that the court must resolve i think the only case that i have come across is a parks case right which i consider notwithstanding judge bugs is presence here today from the six circuit it was on the panel to be an anomaly and  also at one is a right of publicity case which is different than what we have here in terms of the expressive work is involved in doing that or there apply the exact same roger stuff that we're trying to struggle with here so how is no artistic row right and i'm saying that that seems to mean just as in that case here there is a jury question as to that as i said you've made perfectly good arguments as to why that's not the case but maybe a jury could disagree with off of that median a little bit in the rosa parks case the reason that the court found a triable issue as to no artistic relevance was because the outcast member who was involved in creating the song said there was none so what you have there is a situation where you just have the name on on a song which is out there to in a way attract the audience which is different than a greeting card because in the greeting card here it's not honey badger don't give a hoot on the cover it's happy birthday or there's a there's there's a blank which kind of makes you intrigued as to what might be on the inside and then you have the the use of the term on the inside and that pushes you over the zero the nation into the reverential line is in effect it's a punchline from comedic sense right there that it was in fact relevant it to keep the relevant it does your honor and that's what the hook is is there's just has to be some connection in terms of artistic relevance to the use of the of the term and here it's implementing it into a card that conveys various expressive ideas not only of the artist but also out on behalf of the donor of the have to see jim brown but here again the difference is the length of time that you have in the options you may have in the video game just are not conducive when you have a small yet equally gain it's a situation where that particular use of rodney dangerfield i would say in less you could do something like what mr drape in the greeting card cards in this case have done or you've argued that the greeting card itself is is the value added that's what that was the argument that you made when i asked you this question the abstract at the at the beginning of your argument so now i've given you the rodney dangerfield example right and aren't you just going to have to stick with the fact that they put it into a greeting card and that is the artistic that's the value added but the well it's part of the united the value added is also what the artist did with the greeting card so this is a little bit more beyond what if if if  that's all i said before i meant it in in in the contents of that tequila question and i apologize if i misled you but in the context of an expressive work and artistic relevance you look at the entirety of what was done with the greeting card and in the package that was done with it and that is what makes it artistically relevant in the rodney dangerfield example would i don't know if this is part of the hypothetical that wouldn't make a difference if the phrase i don't get no respect is trademarked or if it was trademark with a picture i think it would make it make it tougher to defend it would and here we of think the two would be equivalent questions does it make any sense they may in iran they may but again i think the focal point here is what my clients did in the greeting card to constitute artistic relevance and what they did was sufficient to get over the more than zero percent that this that this court finds and what they did was that was the choice in the selection of the picture of the honey badger selection of the type to type on the phrase inside you know the use in turns of the idea the expressive idea regarding birthdays how we it's even the critter card where it's like what what is this you know it's something intriguing because you have a you know a blank and then it's like we don't care it was that different because of the t shirt for example just says it to the whole world maybe that the way the wearer doesn't care where is here you don't care about elections birthdays following right and the in your media your is coming the honey badger don't care create correct your honor and you're providing you're providing an audience with the ability to then share that idea without us so like hey i don't care about the election and i don't care about your birthday hey you think you're all that not really and so it's in that context that you have artistic relevance would it be more relevant if it said you know trump won or hillary los i don't think so your honor i think the idea is we don't care we don't care who won we don't care who lost we just are apathetic about everything whether it's your birthday olinger or otherwise unless according to any questions on the other  or disagree that it was in a sense explicitly political trump one or hillary lost honey badger don't care you would still not have any artistic relevance that's correct your honor there's two factual inaccuracy is i want to point correct your honor my point is that there's no image of the honey badger or any other techs or anything at all besides my client's trademark on the inside of this cart secondly council talked about in our target how mr dream perceives our targets and  millions of car thousands of cards in response when our target out is deposition mr drake was asked about our targets ok never discussed any time with the purpose of an our target was with someone from recycled greetings is the answer no in on and on and on it's is cited in the record well do you know what the purpose of an r target is is the answer i don't i don't know so these are all factual in consistencies that go to the veracity or lack thereof of mr testimony that should be put before to conclude i would like to say if this ruling stands today it really gives carte blanche to any greeting card company to use another straight mark on the inside of a card if mr drake wanted to do a greeting card that said happy birthday and then on the inside the card that said go cougars referring to be why you are gold gold and bears referring to cal and i'm assuming that those are trademarked by the universities what's to stop him or any greeting card company from just misappropriating to use in capitalize off the cachet of someone's popular trademark nothing it's giving any greeting card card company free reign to do that in really in conclusion mr gordon my client is a creative genius he had a bolt of  lightning six million views on you tube was it basically a celebrity around the country for about three years and he had a brief window of time really to strike while the iron's hot on night and he should be the one he not the defendants in this case to capitalize off his good will he mr gordon should be the one to capitalize off his popular phrases his hard work his creative genius why should the defendant corporations after they they receive the pitch from mr gordon's licensing agent creative will be submitted