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North face to see its butt? |
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The law’s not much fun, so it’s good to see some humour now and then. If you’ve experienced a northern hemisphere winter recently, you’ll know that every second person wears a North Face jacket, a brand that’s used with the tagline ‘Never Stop Exploring’. Now with that sort of market share you’d think the US$7 billion company would be well chuffed, but no, it’s seen fit to sue a US teenager called Jimmy Winkelmann for trade mark infringement. Why? Because he’s selling clothing called South Butt, together with the tagline ‘Never Stop Relaxing’. Jimmy’s defence document is a classic. He describes himself as ‘a cherubic teenager, budding entrepreneur and college freshman’, who ‘may have turned 19 years of age (but) looks 14 and, to some acts 12.’ He says he founded his company ‘with parodic respect for North Face’, naming it after ‘the soft undercarriage of the non-mountain climbing human anatomy, commonly referred to in non-salacious form as, among others, rump, bootie, bottom, buttocks, posterior, rear, saddle thumper and butt.’ Dealing with the claim that consumers will confuse North Face and South Butt, Jimmy says ‘the consuming public is well aware of the difference between a face and a butt’, and South Butt ‘is patently dissimilar to, in fact the non-salacious opposite of, North Face.’ And his website has this killer disclaimer: ‘We are not in any fashion related to nor do we want to be confused with North Face... if you are unable to discern the difference between a face and a butt, we encourage you to buy North Face products.’ Explaining the parody (necessary in an irony-free zone like the USA), Jimmy says that, whereas North Face products are ‘marketed as products that are to be used in furtherance of an adventurous lifestyle full of exploring’, in fact they are ‘largely consumed by those who have little to no interest in living an adventurous lifestyle but, rather, are interested in acquiring Plaintiff’s products for the status and/or notoriety they receive from being seen in Plaintiff’s expensive apparel and accessories’. He is therefore making ‘a bona fide commentary of the pervasive banality, frivolity, absurdity and comedic nature of the consumer culture and those who participate therein.’ In South Africa, this case would be laughed out of court. So do feel free to call your new gym Passive Slut, your new bank Last Global, and your new beer Shack. Hans Muhlberg head of Moore Attorneys Cape Town (attorney, UK solicitor, UK and European Trade Mark attorney) |
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