Thursday, September 20th 2018
 

The Difference Between “Face” and “Butt”

Earlier this spring, a controversy erupted at my school, the University of Missouri, between the company North Face and a 19-year-old student entrepreneur who started his own clothing company humorously called “The South Butt”. With the tagline “Never Stop Relaxing” in contrast to North Face’s “Never Stop Exploring”, freshman Jimmy Winkelmann sold his South Butt apparel sells at a fraction of the cost to students looking to get a laugh.

Take it from me, it’s hard to walk anywhere on a college campus without feeling like you’re being followed by a mob of North Face fleeces. Considered much of a necessity, North Face clothing has recently become more of a fashion statement than outdoor adventure apparel. Although some students may consider their trek to class as a dangerous journey through the intrepid unknown, most college kids I know throw on their pricy North Face gear to stay cozy, comfortable and chic in between lecture halls. Even now in the summertime, North Face offers a collection of ever popular t-shirts, hats and shorts.

However, last semester I noticed more and more students sporting “South Butt” gear. Hey, I thought, that’s a pretty funny play on words. The phrase was paired with the same half dome shaped peak (except turned upside down) that I had come to know very well with North Face products. It was easy to make the humorous connection, but did manipulating the North Face logo violate the company’s copyright?

In December 2009, North Face announced a lawsuit against the clothing line, seeking damages for infringing on its trademark. North Face claimed that South Butt apparel could potentially create marketplace confusion for consumers who are looking to purchase North Face products. South Butt’s legal representation responded with “everyone knows the difference between a face and a butt.”

“Butt” jokes aside, are the courts laughing? Both companies reached an unknown settlement in April. There were no details on either company’s websites about the agreement, but Winkelmann is still allowed to sell his merchandise through his website www.thesouthbutt.com. Still, if the case had made it to trial it would have been interesting to see the outcome.

A trademark is a type of intellectual property. Word phrases, logos and symbols are usually trademarked to identity and distinguish a certain product or service from its competitors. The question here would have been whether parody, or a humorous imitation, could have served as a defense against North Face’s lawsuit. Although courts have established parody as a defense against copyright infringement claims before, the rules are not straightforward. Instead, lawsuits dealing with parody are decided on a case-by-case basis.

The South Butt parody, however clever it may be, did not appear to be an automatic winning defense in this case. Since Winkelmann sells similar products that appeal to the same target audience as North Face, he could have been viewed in court as a competitor looking to make a profit off a variation of the North Face trademark.

So even though Winkelmann ended up settling, if you’re thinking about using a trademark parody in your own business, remember this young entrepreneur’s story. I’m sure Winkelmann had no idea what he was getting into, even if the publicity benefited him in the long run.   What may start out as a harmless joke could turn into harassment or even a lawsuit from a well-known company. Although you may start off laughing, copyright infringement may have you as the “butt” of the joke if you’re not careful. Luckily, Winkelmann can now take his own advice – and start relaxing.

Posted by Rachel on June 15, 2010 at 2:26pm.

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