Here’s the scoop on this latest fashion knockoff lawsuit. North Face, who is well known for selling a particular kind of hiking apparel is more than slightly peeved with South Butt who is also offering very similar clothing, which isn’t so bad if that was all they were doing. However, South Butt is blatantly using North Face’s logo and typeface. This is decidedly tacky to say the least, not to mention it crosses some fine lines in the world of trademark infringement. One of the defense’s used in this case invokes something not a lot of people, even lawyers, have heard about; the free speech/parody defense. It’s quite clear that South Butt (who do you suppose chose that name anyhow?) is just having a blast with this lawsuit. And why not, the publicity is potentially worth millions for them in sales. What’s so hilarious is the fact that their official court documents claim the public is well aware â€of the difference between a face and a butt.†Well, obviously the Butt’s lawyer happens to have a sense of humor. While it might be funny, knowing the difference between a face and a butt really is precisely the question that needs to be asked †would the public be confused by the difference in clothing lines and names? Hard not to laugh about this, isn’t it? Take a look at this from the viewpoint of the right to free speech is inherent in our nation and add the vital importance of parody in the marketplace and, well to be honest, it appears South Butt has a good point. It begins to appear that perhaps North Face may be holding some sour grapes. What’s even more interesting about this case is that the creator of South Butt is 19 years old and set up this line of clothing for the very purpose of commenting on consumerist culture by doing a parody on the prominence of the North Face logo. Enter the freedom of speech defense. North Face is none too impressed, but the general public is rather amused. Here is a really good question to ponder. When does the right to free speech and parody trump a trademark? Case law indicates that â€it appears that resolution may turn on no more than how clever and humorous the court thinks the defendant’s usage is. If it is relatively innocent and clever, it will be allowed.†For example the federal court in Ohio held that the slogan â€This bud’s for you†as part of a florist’s ad campaign was not an infringement of the Budweiser beer slogan. And, let’s not forget the stuffed dog chew toys dubbed Chewy Vuiton, Chewnel #5, Dog Perignon and Sniffany & Co. The court allowed these names, reasoning that the â€Chewy Vuiton†dog toy deliberately conjures up the famous [plaintiff's] marks and trade dress, but also communicates that it is not the [plaintiff's] product †The juxtaposition of the similar and dissimilar-the irreverent representation and the idealized image of [plaintiff's] handbag-immediately conveys a joking and amusing parody. The furry little â€Chewy Vuiton†imitation, as something to be chewed by a dog, pokes fun at the elegance and expensiveness of a Louis Vuitton handbag, which must not be chewed by a dog. So, in the case of North Face versus South Butt †it looks like the winner may be South Butt, provided they really are making a social comment.
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