The short phrase “lettuce turnip the beet,” may be cute and clever, but it isn’t protectable under copyright law, a California district court has ruled.

In the case Gorski v. The Gymboree Corp., plaintiff Elektra Printz Gorski accused Gymboree of infringing her registered copyright and trademark in “lettuce turnip the beet” in marketing and selling clothing featuring the same phrase. Case No. 14-v-01314, 2014 WL 3533324 (N.D. Cal. July 16, 2014). Gorski alleged that she first created shirts with the phrase in 2011, and that the shirts have become one of the most popular children’s products on Pinterest. Gorski asserted that Gymboree’s “knock off” shirts featured a screen-printed design “substantially similar” to her copyrighted designs. She also alleged that Gymboree’s use of the phrase was likely to cause confusion among consumers as to the source of Gymboree’s goods.

The Northern District of California granted Gymboree’s motion to dismiss Gorski’s copyright claim, ruling that even though Gorski had a copyright for a T-shirt design with the phrase “lettuce turnip the beet,” the phrase itself was not a protectable element. The court explained that in determining substantial similarity, not every element of a copyrighted work is protected by copyright law. Just as ideas, facts, and other public information cannot be copyrighted, slogans and other short phrases are also not protectable. The court concluded that since the only alleged similarities between Gorski’s design and Gymboree’s product were the arrangements of “lettuce turnip the beet,” there was nothing for copyright law to protect.

The court, however, did deny Gymboree’s motion to dismiss Gorski’s trademark claim, determining that Gymboree had not yet demonstrated that its use of the phrase constituted either classic or nominative fair use. Classic fair use applies where the defendant uses the plaintiff’s mark only to describe the defendant’s own product. Nominative fair use applies where the defendant uses the plaintiff’s trademark to truthfully refer to the plaintiff’s goods/services, but not in a way that might confuse others as to the defendant’s affiliation with the plaintiff. Here, the court found that neither affirmative defense applied because Gorski alleged that she had received multiple comments from consumers evidencing that actual confusion was occurring.