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Butt Your Honor... South Butt Files Their Answer

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By Tanya Roth, Esq. on February 05, 2010 11:48 AM

For those of you that have been following the entertaining lawsuit (yes, those words can go together) that is the North Face v. South Butt trademark infringement case, here is a dollop of news. Filed on February 4, South Butt has submitted its required Answer to the Complaint filed by North Face.

As you may already know, the world famous North Face company (owned by the VF Corporation) has sued the scrappy little upstart South Butt. Started as a reaction to the label lovin' cool kids at his high school South Butt originator, young Jimmy Winkelmann, also sells fleece jackets, T's, hoodies, etc. North Face's motto: Never Stop Exploring. South Butt's motto: Never Stop Relaxing.

Sound similar? It is, and so are the jackets. And as pointed out in the original FindLaw post on this topic, that is the point. The South Butt products are meant to be a parody of the North Face ones and are a also meant as a comment on the "banality, frivolity, absurdity ... of the consumer culture ...." (Answer, p. 17) We're guilty as charged, Jimmy.

The South Butt Answer to the North Face filing is a cheeky little piece of social satire printed on pleading paper. It is the work of attorney Albert S. Watkins, who seems to be more or less corporate counsel and was initially roped into the job of legal advisor because he is a squash partner of Jimmy's dad. In an early ABC News report on the TM fracas, Watkins told the press that he offered his services in return for a "really good bottle of burgundy." That should have told us all something right there, this is no regular company and their attorney is a little out of the shipping box as well.

And good thing. For smarm, charm and feistiness, this legal document is hard to beat. For a strong defense on some of the points that the plaintiffs made (such as tarnishment of trademark), or the trademark infringement defense based on the First Amendment protection of parody, maybe not. The claim made that the South Butt speech is not commercial speech and therefore protected by the "strict scrutiny" level of review by the court may not reach the mountain top. So to speak.

Points made about the use of the word "iconic" by North Face to describe its Denali jacket, i.e., that it ain't exactly at the level of religious art, (Answer, p.6) are right on the mark. In addition, the defendants have pointed out that the North Face parent company, VF (for Vanity Fair, not to be confused with the "iconic" magazine, Vanity Fair, Answer, p. 2 ) has purchased several companies that seem to be competitors of North Face. Further, the use by North Face of trademark law not to protect or encourage competition, but to squash a minor player in the market, seems a bit of an overreaction. North Face might want to remember that the exploring, curious, limit-pushing customers it claims are its own, may not take kindly to the choke chain they are trying to place on this underdog.

Can't wait to see what Horatio Alger and his counsel come up with next.  

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