Alda Curtis, a 63-year-old counselling student from Sydney, set up a Redbubble store as a hobby, including selling a T-shirt featuring an unhappy cat cartoon.
After years of running the store, a single sale of that T-shirt resulted in a US$100,000 default judgment against her for infringing on the trademark of Grumpy Cat late last year. Then Curtis noticed nearly US$600 had been taken from her PayPal account.
Grumpy Cat, also known as Tardar Sauce, shot to internet fame in 2012 due to her permanently grumpy facial expressions that were caused by a permanent underbite and feline dwarfism.
The American domestic cat became a symbol for everyone on the internet who felt disgruntled about life, with millions of followers on social media, memes, merchandise including clothing and soft toys, and even a fragrance.
At the peak of the cat’s fame in 2014, the film Grumpy Cat’s Worst Christmas Ever was released. It starred the grumpy cat herself, voiced by Aubrey Plaza. Rotten Tomatoes gives the film an aggregate score of 27%.
The world of internet stardom moves on quickly, however, and Grumpy Cat’s fame has dimmed since Tardar Saucedied in 2019, aged 7.
But the ghost of the frowny feline still haunts anyone trying to sell a product that could be confused with the real Grumpy Cat. The owner of the Grumpy Cat trademark is ever vigilant for unauthorised products sold online.
Last year, Grumpy Cat Ltd filed a trademark infringement lawsuit against more than 200 online sellers in an Ohio court. They sought damages for products sold on sites such as RedBubble that allegedly infringed on the trademark.
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In September last year, the court ruled a default judgment in favour of Grumpy Cat Ltd. The company was awarded damages of US$100,000 per defendant.
If the payments were made in full, the company would win more than US$24m.
The sellers have also been restrained from continuing to sell the products identified, forcing the removal from the online stores.
Curtis set up a Redbubble store as a hobby while studying counselling in the northern suburbs of Sydney, Australia. She first became aware of the Grumpy Cat Ltd case against her two weeks after the default judgment in Ohio.
The problem for Curtis was one item she sold: a T-shirt of a frowning purple and yellow cat. She said the sale had been made just before the US lawsuit was launched against her. The T-shirt had sat unsold for years on her site.
The design for the T-shirt had been licensed from a design website, titled “Grumpy Cat Pattern Graphic T-shirt”. Curtis earned just over US$1 from the sale. In the six years she had been running her store, she had generated about US$200 in revenue.
Curtis said she had “absolutely no intentions” of infringing the trademark. “I’ve seen a picture of that cat, but I didn’t even cross my mind that was in any copyright infringement or anything like that,” she said.
“So it was totally just a fluke, and they’re taking advantage of that. If everyone in the world is going to be not allowed to call [a design] Happy Cat, Grumpy Cat, feathered cat, or whatever it might be … where does it end?”
In February, a few months after the ruling, Curtis discovered US$592.75 was missing from her PayPal account, without explanation. After multiple attempts to contact PayPal to try to get the money back, Curtis said PayPal referred her to Grumpy Cat’s lawyers.
Others across the globe have found themselves in similar situations. There are posts on Reddit asking what to do after finding a default judgment has been made against them.
“I had no idea ‘Grumpy Cat’ was a thing. ‘Grumpy Cat’ was not even mentioned on my design neither looked my design like their stupid cat,” one poster said.
Prof Graeme Austin, chair in private law at Victoria University in New Zealand, said US trademark law gives courts powers to impose tough damages awards in infringement cases, including statutory damages of up to US$200,000.
“Wholesale default judgment proceedings in trademark and copyright cases are a familiar strategy for intellectual property owners,” he said.
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“They can be a useful tool for trademark owners – but they risk imposing very harsh remedies on individual defendants who might have had good defences if they had acted sooner.”
Austin said such cases were not unusual, and it was important for anyone served with a complaint to act quickly.
“The last thing you want is to be swept up in proceedings against a large group of other defendants. You want to be in the position to raise any defences as early as possible.”
Curtis said it could be a case of what has been termed “SAD Scheme”. In a 2023 Columbia Law Review Forum article, Prof Eric Goldman described the“Schedule A Defendants Scheme”in the northern district of Illinois – where the Grumpy Cat case was filed – targeting online merchants in China, mostly.
Goldman said the scheme allowed rights owners “to extract settlements from online merchants without satisfying basic procedural safeguards like serving the complaint and establishing personal jurisdiction over defendants”.
Goldberg argued the scheme “goes far beyond just curbing online infringement and instead causes substantial harm to innocent merchants”.
Australian copyright law expert Fiona Phillips said the US-based PayPal taking the US$592.75 from Curtis’s account was the company enforcingits user agreement, which outlines funds may be taken in response to a court order.
“It is an interesting development in the enforcement of IP across national borders and a further reason for people to pay more attention to the terms and conditions,” she said.
Curtis is now battling to have the default judgment vacated.
In response to her filing in the court, lawyers for Grumpy Cat have argued that service was made to Curtis’ Gmail account on 2 May 2024, and have sought to have the motion dismissed on the grounds that Curtis has filed the motion under her name, not in the name of the online seller name she had used. The company also argued that the trademark infringement was due to the name of the product being “Grumpy Cat Pattern Graphic T-Shirt”.
Curtis said a search of her inbox shows no email from the lawyers until the first one she received in September.
A ruling has yet to be made.
Lawyers for Grumpy Cat offered to settle the case for US$1,000 in an email to Curtis in March, seen by Guardian Australia. Users on Reddit have reported similar offers.
In 2018, Grumpy Cat Ltdwon $750,000 in damagesfrom a US coffee company for violating the terms of their agreement to use the cat’s image on a line of iced coffee drinks called “Grumppuccinos”. Grumpy Cat’s owners said the company had “blatantly infringed” their copyrights and trademarks when they began selling roasted coffee and Grumppucino T-shirts featuring Tardar Sauce’s face.
As of 2024, itwas reportedthat Grumpy Cat Ltd had filed more than 50 lawsuits related to the use of Grumpy Cat in unauthorised merchandise.
Grumpy Cat’s lawyers and PayPal were contacted for comment.