Gorski v. The Gymboree Corp., 14-CV-01314-LHK, 2014 WL 3533324 (N.D. Cal. July 16, 2014)

Three years after Gorski first started producing kids’ T-shirts featuring her slogan, “Lettuce Turnip the Beet,” Gymboree started selling its own version of the shirt. Gorski filed suit in federal court for copyright and trademark infringement, and Gymboree filed a motion to dismiss.

First, Gymboree argued that Gorski’s copyright claim should be dismissed because she failed to identify any protectable elements in the T-shirt. The court agreed, holding that “[s]hort phrases, no matter how distinctively arranged, are not protectable elements.” Because all the similarities between the shirts related to unprotectable elements, the court dismissed the copyright claim.

Second, Gymboree contended that Gorski’s trademark claim failed because its use of the slogan constituted fair use. The court rejected this argument, explaining that it was improper to consider the fair use defense at the motion to dismiss stage because the court could not find as a matter of law that Gymboree’s use of the slogan did not suggest sponsorship or endorsement by Gorski. The court also noted that the allegations in the complaint suggested that Gymboree was capitalizing on consumer confusion and the “cachet of Gorski’s products.”