Update: The North Face vs. The South Butt

Posted on May 5, 2010

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On February 24, I brought you the story of The North Face Apparel Co. and The South Butt, a small company whose products mocked those of the large outerwear supplier. At the time, The North Face had sued The South Butt for trademark infringement and both parties were ordered by a judge to attempt mediation before litigation.

Considering the clout (and team of attorneys) behind The North Face Apparel Co., it seemed likely that The South Butt would back down before ending up in court. As of April 12, the two parties had settled. The terms of that settlement are, of course, confidential.

The same irreverence and humor Jimmy Winkelmann brought to the founding of his company and brand have been seen throughout the legal proceedings of the past months. His attorney’s initial argument against North Face’s claim of trademark infringement was that “the consuming public is well aware of the difference between a face and a butt …” according to New York Magazine. When asked about the settlement, Winkelmann’s attorney revealed no specific details and replied in a similar wry tone that, “You don’t know how much it pains me to only say that.”

What can be determined is that The South Butt remains in business. Its website is up and running, its merchandise is for sale and The South Butt continues to maintain an active social media presence via Twitter. The company even posted its first music video/commercial on April 12, 2010.

As is often the case in situations like this one, The South Butt received a lot of free publicity simply by being sued.  Since The South Butt is still going strong, it leads me to conclude, surprisingly, that the clothing giant was the one who backed down in this instance.

The underlying question of this case was whether The South Butt’s actions constituted piracy or parody.  Courts have not adopted a consistent approach to analyzing the parody of famous marks under applicable law.  The North Face v. South Butt case presented an opportunity for this inconsistency to be remedied, but upon conclusion of the settlement, this opportunity will be lost and we will have to wait until another case with similar facts makes it to trial.

All in all, it has been interesting and entertaining to follow this case.  I hope you have enjoyed it as well.

Elizabeth Ritter
Goodrich Law Firm, LLC

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