Jimmy Winkelmann, a freshman here at the University of Missouri, established The South Butt clothing company, poking fun at today’s logo-obsessed youth. The result? You guessed it: a cease-and-desist letter from The North Face, accusing Winkelmann of sowing “confusion” in the marketplace and violating its intellectual-property rights. Surprisingly, Winkelmann didn’t back down, but decided to fight the case. Go Jimmy!
Source link: http://blog.mises.org/10798/ip-as-a-joke-south-butt-edition/
IP as a Joke: South Butt Edition
Previous post: Party Like It’s 1972
Next post: A Brilliant, Mixed-up Mess of a Book
{ 8 comments }
Actually, that illustrates that IP is not a joke. Logo obsession is a real phenomenon. For whatever reason having the right logo increases a product’s value.
Yes this particular instance is ridiculous (and thus makes a good strawman), but what if Jimmy Winkelmann decided to come out with a “The North Face” clothing line. Wouldn’t there be real confusion in the market?
Citing confusion in the marketplace implies idiocy in the market in this case. Anyone who would “confuse” the North Face with the “South Butt” is a little bit more than just “confused”.
Branding however is not quite the same as IP. It is a real part of Identity. But that does not excuse the North Face from their ridiculous claims of market confusion. There is a distinct difference in brand identity, and therefore nothing for them to pin a judgement on. They can’t claim that just because the South Butt sells clothes and they sell clothes that there is confusion between brands. If this were so, then ANY other brand name would create “confusion” in the market. The market is not unitellegent or confused. It is a collection of free-thinking individuals and to assign “confusion” to it is to claim knowledge of it’s experience, something that is impossible under any circumstances.
In order to make a valid claim on the branding “confusion” possibility, they have to show that a random sample of the population is unable to tell the difference between the two at first glance. How many? Up to the court. But still, in this case, I have to tell you again that anyone who confuses North with South and Face with Butt has serious problems outside of brand recognition!
I think the previous two commentor’s remarks indicates the widespread confusion among laymen about the way IP law actually works. This is understandable, given that IP law is arcane and confusing, but why laymen feel compelled to weigh in authoritatively on such specialized matters is beyond me. But I see it all the time. I hear tech commentators continually yapping about patent, trademark, copyright, intermixing and confusing them, applying standards of copyright to patent cases, etc. It’s just a mess.
Trademark law is not as bad, from a libertarian perspective, as copyright and patent, as I discuss in Against Intellectual Property (p. 58); see also my posts Trademark versus Copyright and Patent, or: Is All IP Evil? and Trademark and Fraud.
The basic idea of trademark as it developed in the common law is that someone cannot use the mark of another if it is confusingly similar to the mark of that other party. Now as I noted in the linked pieces above, the primary right should be the right of the consumer, not the trademark holder, and it should be more explicitly anchored in the notion of fraud–but you can see that the idea of “confusingly similar” is more or less related to the idea of fraud: if the competitor’s mark is so similar that it will confuse the consumer, it’s arguable the competitor is defrauding the consumer. But this has nothing to do with “dilution.” It’s focused on misleading the consumer (note that a clearer focus on this, and making it clear that the consumer, not the trademark holder, is the plaintiff, would not prohibit knockoffs such as cheap Rolex watches or Louis Vuitton purses, since in these cases the consumer is not defrauded or misled at all).
But when the feds converted state-based, common-law originated trademark rights into a national legislated scheme (the Lanham Act)–and an unconstitutional one at that, since only copyright and patent are provided for in the Constitution, not trademark rights (which is why the Lanham Act covers only interstate commerce-related marks and exists side-by-side with state trademark law, while copyright and patent are completely federal and have no state analogues)–trademark law has gotten worse.
In particular, Congress added a cause of action for “dilution” of a mark. This has nothing to do with defrauding or confusing the consumer. Instead, it permits “the owner of a famous trademark to forbid others from using that mark in a way that would lessen its uniqueness.” Thus, you can have The North Face asserting this against The South Butt, even though there is no possibility of consumer confusion, on the grounds that this latter mark would “lessen the uniqueness” of The North Face mark (I’m assuming this is one of the grounds of its complaint).
Obviously, the notion of dilution is a terrible, and unlibertarian, extension of trademark law. Of course, pro-IP libertarians have little grounds to whine about it: it’s more similar to the reputation (anti-defamation) rights most of them support, which is based at root on the fallacious notion that creation is a source of ownership, and on the confused idea that there is a property right in the value of owned things rather than to their physical integrity.
Yes a brand is a part of a product and should be ‘owned’ and protected. But I look at coca-cola and they were able to create a brand when alot of other companies produced similar sounding brands. But people were not confused,. P&G is another example. Both companies created successful brands long before brands were protected and enforced with lawsuits.
Also this company is getting ‘record’ sales due to the publicity. Makes me laugh. TNF is shooting itself in the foot and injuring their brand by engaging in this asinine corporate aggression.
Its not like South-Butt created “The Northerly Front”
As Jimmy’s father it is safe to say that I am a little bias over this matter. Regardless of the financial benefits that may accrue to Jimmy this is a very interesting case both from the technical IP legal issue as well as the protection of free speech afforded under the first ammendment of the constitution. Two years ago I first asked Jimmy; “Who would buy this stuff?” he told me it was for people who didn’t want to wear The North Face. I asked him how many people wore The North Face. He said millions! Maybe Jimmy has stumbled on a sustainable demand in the market place – only time will tell. I think if Milton Friedman was alive he might have asked; “Should people be free to choose The South Butt?”.
dumb move. the north face should have bought the guy out. he’s a marketing genius.
besides, dragging the joke onto the national stage is highly risky. if i laughed, i won’t be the only one.
In June I will be a 57 year old outdoor junkie, who bought his first TNF item in 1968 or 1969 (very early in the history of TNF). I have copies of TNF catalogs that go back into the early to mid 1970′s.
A long time ago (and before all of today’s hype) TNF was generally considered the 2nd best manufacturer of outdoor clothing in the world (Chouinard [which became Patagonia] was, and still is, numero uno).
But today’s TNF is but a shell of it’s former self. It’s products today are, in the main, decidedly 2nd rate.
I bought the first geodesic tent TNF ever sold in Europe in 1977; then it was light years ahead of anything on the market. But, I haven’t been able to bring myself to buy anything from TNF since the mid 1990′s. I’ve tried on lots of stuff, and used clothing and equipment bought by others. I haven’t been impressed!
TNF, like most of the pioneering producers of outdoor equipment from the period 1965-1985, sold out to corporate interests, who have no interests in maintaining the company culture that made TNF great.
You go Jimmy. I have no doubt that the average person wouldn’t be confused by TNF or TSB logos. But; perhaps TNF customers just might be. After all, if they aren’t smart enough to recognize TNF products for the crap that they have become in 2010, maybe they couldn’t tell the differences between the logos.
If you need an expert witness with years of experience buying & using TNF (and almost every other ‘big name’ brand of) outdoor equipment around the globe just let me know. I’d be more than happy to help you show TNF the error of their ways.
Best regards,
Steve
Thanks, you have a great blog here! I’m definitely going to bookmark you!
Comments on this entry are closed.