Asshats With Deep Pockets
The North Face goes after The South Butt. Matt Straquadine posts on amlawdaily:
It's one of the most chuckle-inducing trademark claims in recent memory: The North Face Apparel Corp. has sued 19-year-old University of Missouri freshman James Winkelmann for trademark infringement and dilution. According to its motion filed in December in the U.S. district court for the eastern district of Missouri, The North Face says Winkelmann, a biomedical engineering student, has caused it "irreparable harm" by producing his parody clothing line, The South Butt (motto: "Never Stop Relaxing").Last week Wilkelmann and his attorneys filed an irreverent reply brief, which is excerpted below, along with a motion to dismiss the suit. According to his filing--as well as to his website and his attorney, Albert Watkins of St. Louis firm Kodner, Watkins, Muchnick, Weigley & Brison--Winkelmann started the clothing line as a joke. Winkelmann says he was inspired after to do so after noticing that all his friends were buying North Face gear even though they weren't mountaineers. He decided to poke fun at the idea by coming up with a "South Butt" logo; slapping it on T-shirts, jackets, and sweatshirts; and selling the clothes via a Columbia, Mo., pharmacy and the Web.
The North Face didn't find the joke funny. The company learned that Winkelmann had moved to trademark the South Butt name, and in August sent him a cease-and-desist letter. Winkelmann--who Watkins claims had sold less than $5,000 worth of South Butt merchandise by that point--ignored the demand.
Idiots. The South Butt parody, in my opinion, gives cachet to North Face, a boring line of clothes for people whose idea of camping goes beyond staying in a bad hotel.
And besides, haven't they heard of a crazy little thing called "the First Amendment"?
I'm guessing they thought they could bully him into pulling his line.
In this business, we call it free advertising and publicity.
And here's a bit more: Buy The South Butt items here.
via Walter Olson
That's one of the problems in this country where a big company or a rich somebody can sue someone into bankruptcy.
If we had a loser [ay there would be a lot less lawsuits.
David M. at January 13, 2010 6:12 AM
Supposed to be loser "pay"
David M. at January 13, 2010 6:12 AM
You meant "cachet".
hanmeng at January 13, 2010 6:20 AM
I LOVE this kid! What a great idea, wish I'd thought of it! I've never bought anything North Face, nor do I intend to. I will, however, buy one of the pink South Face shirts. Because I can.
Flynne at January 13, 2010 6:26 AM
Ooooops South BUTT I meant! Eh, you knew that.
Flynne at January 13, 2010 6:26 AM
"Idiots."
Yeah. At this stage of the game, the kid could never have been able to afford the publicity North Face is giving him. What a godsend for him.
Jim at January 13, 2010 6:34 AM
I see the headline: "North Face Buttheads Butt Heads with South Butt."
BlogDog at January 13, 2010 6:42 AM
The North Face has never heard of The Streisand Effect, apparently.
Melissa G at January 13, 2010 6:42 AM
The problem is that North Face had no choice. Trademark law doesn't distinguish between parodies and other infringement. So if North Face DIDN'T sue this kid, the next time they had a serious infringement problem, the infringer could point to South Butt and scream "North Face is a weak mark! They don't sue other infringers!"
Trademark law should be changed so that parody use of a mark is evidence that a mark is strong (no one parodies a weak mark), not evidence that the mark is weak.
I can't get too mad at North Face; they're just following the rules. It's the rules that are wrong.
PS: No First Amendment issue; this is commercial speech, not political speech.
TestyTommy at January 13, 2010 7:56 AM
IANAL. Nor do I play one on TV but I suspect this is just the North Face covering its trademark butt (So to speak :-). His logo is pretty obviously derived from the North Face logo and this is commerce, not parody. Companies are very protective of their trademarks in large part because, if they aren't, it can become what the lawyers call "diluted" and the owner will lose the rights to it.
Yes I know it can get silly and this seems to be an example but it is unlikely to hurt business for the North Face. In fact it may be good for them -- the free publicity sword cuts two ways. How many people switched to AMD because Intel tried to trademark the numbers 386, 486, etc? How many rushed out and bought Macs or installed Linux when Microsoft tried to trademark the word "Windows"?
parabarbarian at January 13, 2010 8:04 AM
Do people get hired to worry about this stuff, or does it just come naturally?
Oh, I just remembered how worked up people get if you have the nerve to use a name they've 'claimed' for your kid or your pet, so maybe it's part of the human condition.
Pricklypear at January 13, 2010 8:19 AM
OMG I love this! I live in Colorado with all the outdorsy people, I totally have to go pick up some of this stuff! I wonder how long it will take for someone to notice the logo. Oh, this is going to be so much fun.
Ann at January 13, 2010 8:34 AM
My husband went out and bought a South Butt shirt just to show support. He has North Face gear he wears for winter mountaineering-that stuff was well made and useful. Then their stuff became fashionable among the people who 'camp' at luxury resorts. Just as 4WDr started for dirt roads and ended up for suburban moms.
Ruth at January 13, 2010 8:40 AM
Tommy and Parabarbarian, I hear you, but (butt?)... this kind of thing is a slippery slope. Check out the litigation history of Monster Cable if you don't believe me.
Cousin Dave at January 13, 2010 10:01 AM
"IANAL"
Now there's an app I don't want.
Gog_Magog_Carpet_Reclaimers at January 13, 2010 10:59 AM
I think part of tort reform is if large corporation sues a small fry, the corporation should fund the legal bills of the defendant. That would be a monumental reform in the system. That way, the defendant isn't financially ruined in the process AND gets proper legal representation to defend himself. Justice should not be about who has the deepest pockets.
Crusader at January 13, 2010 1:13 PM
Monster backs off real quick-like if you don't cave.
http://www.bluejeanscable.com/legal/mcp/index.htm
brian at January 14, 2010 3:56 PM
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