One of the things that frustrates many people with our courts is the inability to resolve matters quickly.  A plaintiff with a lot of money can drive a competitor under regardless of the merits of its claims.  In part, it has to do with judges not just stepping up and saying that there is no way a jury could find for the Plaintiff.  Even if it would not totally resolve the case, such action by a judge could really streamline the litigation.

One case that seems to beg such action by the court is The North Face Apparel Company v. Williams Pharmacy et al.   Williams Pharmacy  sells product of The South Butt, LLC another of the defendants.

While North Face has trade dress claims based on its "iconic" coat design, the major issue is whether the mark THE NORTH FACE is infringed by the mark THE SOUTH BUTT.   Apparently, North Face believes that consumers cannot determine the difference between North and South or between a face and a butt.


Clearly, the THE SOUTH BUTT mark is a parody on THE NORTH FACE.  Not only does South Butt parody the name, it also makes fun of THE NORTH FACE slogan "NEVER STOP EXPLORING" with the retort NEVER STOP RELAXING.  On top of SOUTH BUTT's website, it also adds the question "Why climb mountains?"

It is clear that THE NORTH FACE does not like being the "BUTT" of the joke.  But does anyone actually believe that consumers are likely to confuse the two marks as originating from a common source.  One is clearly mocking the other.  (Apparently the Court believes that a jury in Missouri could find a likelihood of confusion.) 

"Winkelmann and The South Butt also argue that the marks are so dissimilar that The North Face cannot possibly prevail.  I do not find it to be implausible that the marks cannot cause a likelihood of confusion or dilution."

That does not speak well for the jury pool in the Show Me State.

What is even more frightening is that, not only did the Court deny the motion, the Court suggested that the motion bordered on the frivolous.  The Court noted:

"I remind counsel of their obligations under Rule 11 and that, with each filing, they certify to the Court that the motion is not being presented to harass, cause unnecessary delay or needlessly increase the cost of litigation and that the legal contentions are warranted by existing case law or nonfrivolous  arguments for extending, modifying, or reversing existing law or for establishing new law.  Although this filing may not reach the level of frivolity, it approaches the line."


 WOW!  So much for parody and the First Amendment.