A cat named Tardar Sauce, who has a permanent scowl due to feline dwarfism, became famous as “Grumpy Cat” after her photo was posted on Reddit. She soon appeared not just as an internet meme, but in TV shows and magazines.
Her owner, Tabatha Bundesen, quickly realized that exploiting the images of Tardar Sauce could be lucrative and formed a company, Grumpy Cat Limited, which has registered the copyright in photographs and an illustration of Tardar Sauce, as well as the trademarks GRUMPY CAT and a Grumpy Cat image.
Because the Grumpy Cat brand was so quickly protected, Grumpy Cat Limited was able to license the image and word marks, as well as the photographs and illustrations, to a number of third parties. In fact, it’s been reported that Grumpy Cat Limited made anywhere from $1 million to $100 million in its first few years.
Grumpy Cat products include notecards, mugs, t-shirts, calendars and plush toys. Grumpy Cat has even “written” a number of books, including a New York Times bestseller.
Grumpy Cat Limited also licensed Grenade Beverage the rights to “Grumpy Cat Grumpuccino” iced coffee line, but Grenade used GRUMPY CAT and the Grumpy Cat image on a line of ground coffee and t-shirts without Grumpy Cat Limited’s consent.
When Grumpy Cat Limited learned of Grenade’s unauthorized activities, it filed suit for copyright and trademark infringement, among other claims. The first paragraph of the complaint read:
“Ironically, while the world-famous feline Grumpy Cat and her valuable brand are most often invoked in a tongue-and-cheek fashion, Defendants’ despicable misconduct here has actually given Grumpy Cat and her owners something to be grumpy about.”
Despite the amusing opening of the complaint, the plaintiff was serious about protecting its rights, and after a trial, the jury ruled in favor of Grumpy Cat Limited, finding Grenade Beverage and one of its principals liable for copyright and trademark infringement and awarding $710,000 in damages.
This case demonstrates the importance of promptly protecting your intellectual property by registering your copyrights with the US Copyright Office and your trademarks with the US Patent and Trademark Office. Early registration provides a number of benefits, including a presumption of validity of your copyright and trademark rights.
By promptly registering your copyrights, you also have more remedies available in case of an infringement. Normally, the remedies for copyright infringement are the recovery of actual damages (if they can be established) and court orders requiring all infringing copies to be destroyed and prohibiting future copying.
As you might guess, it is often difficult, if not impossible, to prove actual damages. If your copyright in the work was registered before the infringement occurred (or within three months of publication), you have the option of being awarded statutory damages rather than actual damages.
Statutory damages are no less than $750 and no more than $30,000, though if it can be established that the infringement was willful, they may be as high as $150,000, and damages for an innocent infringer may be as low as $200.
Moreover, the court may award the full costs of litigation, including reasonable attorneys’ fees, to the prevailing party in appropriate cases where the work was registered prior to the date of infringement or within three months of publication.
Further, a registered trademark that has been in continuous and unchallenged use for a period of five consecutive years may become incontestable. That is, you can secure rights superior to those of a prior but unregistered user if the original user doesn’t object to your registration within five years.
In addition, only federal registration allows you to use the ® symbol. Use of that symbol provides you with the presumption that the unauthorized user knowingly violated your trademark rights and makes it more likely you’ll recover damages and attorneys’ fees for the infringement.
Please feel free to contact us if you have any questions about, or need assistance with, registering or enforcing your copyrights or trademarks.
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