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Free Speech

Don't Care Bears and Intellectual Property Law

Eugene Volokh | 4.27.2026 8:01 AM

Plaintiff Bear and Defendant Bear, from plaintiff's TRO filings.

From Judge Arun Subramanian (S.D.N.Y.) Wednesday in Those Characters from Cleveland, LLC v. Schedule A Defendants:

[P]laintiff has failed to sufficiently address the potential fair use and First Amendment claims related to the products in question that use "Don't Care Bears" (or a variation) along with marijuana imagery. Plaintiff relies heavily on the Supreme Court's decision in Jack Daniel's Props., Inc. v. VIP Prods. LLC (2023). There, the Supreme Court rejected a First Amendment defense to a dog toy that had the same shape and design as a bottle of Jack Daniel's whiskey. But key to the Court's holding was the fact that "the accused infringer ha[d] used a trademark to designate the source of its own goods—in other words, ha[d] used a trademark as a trademark." The Court made clear that its opinion was "narrow" and its infringement holding only covered cases "when the challenged use of a mark is as a mark."

That's not the case here. The "Don't Care Bears" defendants are not using the Care Bears marks as marks; unlike in Jack Daniels, for the most part, the products don't look like the products that plaintiff sells. They don't even use bears resembling Care Bears—some have teddy bears with bows, others have bears a-la the main character of Corduroy, still others have non-Care-Bears-looking bears that appear to have eaten too many Cheetos. For these, defendants seem to just be using "Care" and "Bear" as part of a phrase. So Jack Daniels is inapposite.

The other cases cited by plaintiff fare no better. Plaintiff first cites Cliffs Notes, Inc. v.........

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