Published in Landslide Vol. 11 No.2, ©2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Battle over Terms of Grumpy Cat License Agreement
Grumpy Cat Ltd. v. Grenade Beverage LLC, No. SA CV 15-2063-DOC (DFMx), 2018 U.S. Dist. LEXIS 91342, 2018 WL 2448126 (S.D. Cal. May 31, 2018). Grumpy Cat Ltd. is the owner of the intellectual property (IP) rights in images of Tardar Sauce, a cat with a grumpy face. In 2013, Grenade Beverage entered into a contract with Grumpy Cat Ltd. to use the cat’s likeness in promoting iced coffee products. Grenade used the cat’s image to promote not only iced coffees, but also non-iced products, including ground coffee. Grumpy Cat Ltd. sued Grenade for using the cat images in a way that went beyond the bounds of the contract. The contract text allowed Grenade to use Tardar Sauce’s likeness to promote “a line of Grumpy Cat–branded coffee products,” which was determined by the jury to be limited to iced coffee. The district court reached the question as to whether contract text stating that “additional products within the Product Category [nonalcoholic beverages] that may, upon the Parties’ mutual approval, be marketed hereunder” was a covenant or a condition. If it were determined to be a covenant, Grenade could not be sued for copyright or trademark infringement. If it was a condition, they could be sued for copyright and trademark infringement. The district court determined the language amounted to a condition, and therefore Grenade was not entitled to declaratory judgment on the copyright and trademark infringement questions.
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