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Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.





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South Butt David versus North Face Goliath

As Huebert notes in his post Fighting IP Absurdity: The South Butt Strikes Back, the saga of The North Face Apparel corp. vs. The South Butt continues. As noted on his attorneys' website,
The South Butt is the local case of a Missouri teeanager, Jimmy Winkelmann, frustrated with his classmates' sheep-like following of a popular clothing line. Jimmy came up with his own parody apparel and now faces a lawsuit for trademark infringement.
The North Face filed the lawsuit, claiming that The South Butt is confusingly similar to The North Face, in violation of North Face's trademark rights.

Now Jimmy has filed a biting and hilarious response. In the response, he mocks The North Face, its products and customers (para. 23, II.5-7), its hypocrisy (North Face's owner, VF corporation, "formerly known as Vanity Fair Corporation, not to be confused with the Conde Naste publication of the same name), and its contentions that the public can't tell a butt from a face, calls them "socialist" (para. 37) and bully-like (para. III.2), trumpets "freedom of speech," "the American Way," and the "pursuit of the American Dream" (para. III.2), thanks The North Face for the free publicity (para. 50), and he mentions that he "has initiated an Internet challenge through Facebook designed to hone the skills of the general purchasing public to discern the difference between a face and a butt" (see North Face Lawsuit Against South Butt Going Viral With Facebook App).

Good for Jimmy, and here's hoping he triumphs--though, unfortunately, the trademark cause of action known as "dilution" does not require a showing of consumer confusion, as noted on the Patently-O blog. This is yet another reason why not only patent and copyright law have to go: trademark law is flawed too. As I discuss in Against Intellectual Property (pp. 58-59), the only sound basis for trademark law is fraud. But this would mean that it is the defrauded consumer who has the cause of action, not the trademark holder. Even if you say that the trademark holder has implicit consent of the class of defrauded consumers to sue on their behalf, (a) this would cover only cases of true consumer fraud, not knockoffs where the consumer knows full well she is buying a fake rolex or purse; and (b) it would not include antidilution rights. If Jimmy loses here, it will probably be because of the antidilution cause of action; this is one reason I recommend abolishing it in my list of IP reforms in Reducing the Cost of IP Law.

(For further discussion of problems with trademark law, see n. 46 to Reducing the Cost of IP Law; and Trademark versus Copyright and Patent, or: Is All IP Evil?. For further criticism or discussion of the North Face case, see Peter Klein, IP as a Joke: South Butt Edition; South Butt Creator Fires Back at North Face, law.com; Mike Masnick, North Face Didn't Get The Message; Sues South Butt, Techdirt.)

[Mises; SK]


Comments

I don't see how a clothing line called "South Butt" can even be considered to be diluting "North Face". Dilution would be using "North Face" as a generic term for a broad category of clothing resembling North Face's branded products. Dilution is using a brand name to refer generically to a product category, or using fragments of a trademark elsewhere, e.g. a non-McDonald's restaurant calling a menu item a McSomething might be dilution. I don't see "South Butt" fitting either form of dilution.
Don't buy North Face apparel! But if South Butt hits the stores....
Oh no. I actually agree with Nobody Nowhere. I am sure the universe must be developing a crack.

Nobody:

In addition, South Butt seems like a parody, which should also be protected. I also agree that it is hard to see how it is dilution. If South Butt is dilution, would South Ankle also be? How about North Ear? Just how much north and south can North Butt...I mean Face, claim? North Face is just not that well known - not like that McSomething place, anyway.

Bill:

I think I would buy South Butt just because it is funny.


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