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North Face v. South Butt: Filing Lawsuits to Stifle Parody

April 7, 2010

The North Face and the South Butt recently settled a trademark infringement suit filed by apparel company The North Face against The South Butt, which sells items that parody The North Face.

The policies supporting trademark law are to allow consumers to know what they are buying, and to ensure that producers can identify their products with the goodwill they develop. The North Face’s filing of this particular case, however, supported neither of these policies; instead, it was a clear attempt to stifle parody.

It is well established that parody is a permissible use of trademarks. People are allowed to joke about protected marks because this type of social commentary free speech is protected under the First Amendment. Even federal dilution law, which is the most likely cause of action that The North Face could have sustained, provides an explicit exclusion for parody at 15 U.S.C. 1125(c)(3)(A)(ii).

The South Butt products are so clearly a parody of The North Face’s apparel that there is no colorable claim that could be presented. Ironically, it appears that it was the Defendants who were threatened with frivolity in the judge’s ruling on their motion to dismiss.

Either way, we do not have the opportunity to see the case pan out. The parties have recently settled with secret terms, so we do not even get to hear what the parties agreed to. At least we can speculate, which I plan to do:

The owner of The South Butt allegedly reported that he would consider selling the company to The North Face for $1,000,000. It would not surprise me if the settlement was something along these lines. The North Face could avoid litigation that they would certainly lose, and they would achieve their goal of stopping The South Butt. Moreover, The South Butt’s attorney reportedly said “You don’t know how much it pains me to only say that” when reporting that the parties had settled under secret terms.

At the end of the day, hopefully everyone got what they wanted, which is an advantage of settlement. At the same time, that the lawsuit was filed in the first place demonstrates the abusive tactics that some trademark holders sometimes use.

The South Butt apparel did not confuse consumers nor disrupt The North Face’s good will. The filing of the lawsuit by The North Face was simply an attempt to bully The South Butt in order to prevent permissible parody.

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