You cannot shout “Let’s get ready to rumble!” on the radio without getting a bill. You cannot mimic Toys R Us using a backwards R in a business name. Cyber squatting on domain names is a no no. Even news used to be copyrighted as it travelled from the East Coast to the West. Now we have a clothes debate: South Butt started as a joke and escalated into a Federal lawsuit about trademark infringement on North Face. We have yet to see how the anatomy of this case will play out.
The South Butt offers a direct opposite in name and logo to the well-established, The North Face. The North Face claims there is customer confusion with brand ambiguity. This is in South Butt’s favor in establishing a paradoxical stance, in which the original must be recognizable, but communicate satire, ridicule, or amusement. In other words, North Face has got to be the butt of the joke.
The South Butt also has the Goliath effect in its favor—the American way, free market where the little man can compete against the big company. South Butt made about $4000 in profit last year. (Fortunately South Butt is enjoying free legal representation.) Thus South Butt has very little to lose in the lawsuit except the recent sales spike prompted by North Face’s threat.
South Butt was founded to encourage alternatives, to break the status symbol of North Face clothes. This may be the weak point of the defense, where “alternative” may fade to “knock-off” in courtroom lighting. South Butt is selling the same type of items to the same group of customers; whereas, in the Louis Vuitton v. Chewy Vuiton case, the former sold high-priced handbags in exclusive boutiques while the later was selling dog toys in pet shops. Chewy Vuiton prevailed—dogs can distinguish between a tote and a toy and will always maul the more expensive. However, the similarity of product and consumer target may cause South Butt to lose face.
Meanwhile, eighteen-year-old owner and founder of The South Butt, Jimmy Winkelmann, continues to pursue his degree in biomedical engineering with a business minor. He may not be old enough to drink in Old Milwaukee, but we will see who prevails in Federal Court there, and who gets fleeced.
