In Your (North) Face

Combine the Streisand Effect and a trademark lawyer with wit and resources, and you get the South Butt’s Answer to the lawsuit filed against it by the North Face. This is Half Dome versus Half Ass, the bullying socialism of the North Face (according to the Answer) against freedom of speech and the American Dream (ditto). (See the parties’ marks at this earlier post.) The whole thing reads like a movie script. Some trademark lawyers have all the fun.  Fade in!

Seriously: To be sure, the North Face is a well-known mark and the product of millions of dollars of marketing. Yet as the Answer notes, quite correctly, the mark long ago ceased to be associated primarily with a high adventure outdoors lifestyle; North Face products today are often purchased by people with no greater ambition than to scale the heights of the escalator at the mall. (Of course, I own my share of North Face products, though my 4WD vehicle has spent a lot of time in the woods.) That is South Butt’s point, and it’s a legitimate one.  You can hardly make your way through a Williams Sonoma store these days without crashing into a mob of North Face-wearing shoppers, fresh from REI.

The question is not simply whether folks can critique and parody the North Face; they can. The question is whether the right to critique and parody the North Face is limited to, say, text (The South Butt’s Jimmy Winkelmann can write an essay and post it on the Internet), or whether the right to critique and parody includes engaging North Face on the same turf where the North Face makes it own case: products and marks. In other words, the North Face (like any mark owner) uses its marks in certain ways to make a kind of case to consumers: buy our stuff, because it’s cool/hip/high quality/whatever the company might want to say and persuade you to believe.  Trademarks are about persuasion. Jimmy Winkelmann doesn’t buy the argument, and he doesn’t want you to buy it, either.  But he wants to fight fire with fire: Buy North Face products if you really think that the North Face is all that (and he’s explicit about that point), but really, the North Face is not. He’s just expressing that view in fleece.

The North Face’s right to pursue purveyors of related products with confusingly similar marks is unquestioned; some trademark lawyers would argue that the North Face has a duty to do so. In my view, there is nothing confusingly similar about the South Butt. Go get ’em, Jimmy, and may the snark be with you.

One thought on “In Your (North) Face

  1. May I suggest a quasischolarly hypothetical?

    Assume arguendo that neither the Lanham Act nor the common law jeopardized ownership of a mark for purported “failure to defend.” Does this lawsuit go forward? If so, under what theory? And if this lawsuit does NOT go forward, what use might a later actual infringer (say, a counterfeiter) make of the nonprosecution without relying upon the nonexistent “failure to defend” meme?

    The more I look at trademark law, the more I think the people who wrote it failed civ pro. Repeatedly.

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