Anticipate This!™ | Patent and Trademark Law Blog

The North Face v. The South Butt.

Posted in General Commentary by Mike Dockins on January 15, 2010

 

In case you were not aware, The North Face, a company selling high-end “outdoor” apparel, sued a teenager in Missouri for, among other things, trademark infringement. The teenager, being of strong entrepreneur mind and spirit, started selling clothes under his own mark, The South Butt. Apparently the young gentlemen wanted to generate social commentary on the absurdity of spending an inordinate amount of money on The North Face clothes by his classmates.

As trademark infringement, boiled down to its essence, is about deceiving, confusing, or otherwise misleading the public, it is hard to imagine The North Face will succeed in its lawsuit. This also ignores well established fair use law that allows for parodies of trademarks. In the end (pun intended), one surely can see the parody of The South Butt in the face of (pun intended) The North Face. Let’s hope the courts can get it right.

If you want to support The South Butt LLC, you can visit their online store and purchase a shirt.

For more background information about the case, see what ABC news had to say here in October 2009.

For those interested in the court filings, we recommend reading the Answer filed by The South Butt LLC. It is one of the more humorous Answers you will ever read.

4 Responses

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  1. anon said, on January 15, 2010 at 12:35 pm

    Because South Butt LLC is a for-profit company engaging in commercial speech to sell competing goods, the parody defense won’t necessarily (or even probably) carry the day. McCarthy on Trademarks has a whole section on this.

  2. C. said, on January 15, 2010 at 1:29 pm

    It stopped being a parody the moment Jimmy filed an application to have The South Butt registered as an official trademark.

  3. Mike Dockins said, on January 15, 2010 at 1:41 pm

    Anon, you are certainly correct that commercial speech is treated differently than other forms of free speech. But the fact that it is free speech alone does not destroy the case. McCarthy states that trademarks, by definition, are commercial in nature. There are certainly a slew of cases that support free speech/parody in finding non-infringement. We can certainly agree (as does McCarthy) that parody is no defense to a likelihood of confusion. As the post suggests, we do not believe there is any likelihood of confusion here. Dilution, on the other hand, is an entirely different story.

    C, we are not aware of cases that state the filing of an application for a trademark destroys any parody arguments. At first blush, one would not seem to preclude the other. If you can cite a case or two, we would love to read them.

  4. lueece said, on January 15, 2010 at 2:31 pm

    The North Face has great products “butt” have developed an immense ego to match. They are overpriced and suddenly have become Rodeo Drive trendy. Don’t the “buttheads” realize that the South Butt parody is probably helping their business as well? This is actually a form of flattery…or maybe since it involves the “South Butt” that would be flatulence.


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