“South Butt” fires back against “North Face” trademark suit

by Walter Olson on January 13, 2010

The parodically named line of knockoff clothing isn’t going to go quietly. [Matt Straquadine/AmLaw Daily, Alkon, earlier]

{ 5 comments }

1 nevins 01.13.10 at 9:56 am

Parody is fair game. But the ultimate question is whether he is employing the protected speech rights of parody, or if he is a for profit corporation improperly using the Mark of another company while hiding behind the guise of parody. If he is largely selling clothing and the value derived from sales comes mostly from the value of the clothing, then he is marketing not parodying. I would more easily recognize the sale and expression of parody if his clothing cost notably more than that of North Face; that is, he is selling and communicating parody and the clothing is incidental to the profit derived. The trademark he seeks for his South Butt name and logo indicates that he has moved beyond mere parody as an art form, and simply become another business entity that seeks to profit at the expense of another.

2 Doug 01.13.10 at 10:51 am

Another instance of a company suing a little company, and thus causing the little company to gain more recognition and sales. I also don’t think that anyone is going to be confused between the two companies.

3 Sawbones 01.13.10 at 7:36 pm

Nevins,

“…simply become another business entity that seeks to profit at the expense of another.”

Those gd capitalists, what will they think of next.

4 CarLitGuy 01.13.10 at 9:14 pm

One wonders if “South Butted” is soon to join “the Striesand Effect” in popular understanding – perhaps as a corrolary?

5 Bill Poser 01.14.10 at 3:47 pm

Trademark law is not intended to prevent one company from profiting at the expense of another. It is intended: (a) to protect the consumer who might buy the product of company B when he or she intended to buy that of company A; (b) to prevent one company from siphoning off the sales of another by leading consumers to believe that its products are those of the other. In both cases, the problem only arises if company B uses marks that are readily confused with those of company A. Since it is highly unlikely that consumers will confuse “South Butt” with “North Face”, this is not a situation that the law is intended to address.

It is easy to find examples of one company profiting at the expense of another that are entirely legitimate. If company A introduces a new product and creates a market, and company B then enters the market with a cheaper but superior product of the same type, company B will profit at the expense of company A, but this is exactly what is supposed to happen. The owners of company A may be miffed at the fact that they did not reap the full benefit of introducing the new product, but the law provides no remedy for their distress.

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