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If you haven't heard by now, I'll fill you in. Outdoor apparel manufacturing giant the North Face is suing a college kid named Jimmy Winkleman (yes, he really does go by Jimmy) for creating his own line of outdoorsy-type apparel and calling it "South Butt."1 I kid you not. Arguably Mr. Winkleman could have chosen a better name for his apparel, even if his intention was to "poke fun" at the norm.
Now apparently North Face is suing for dilution and infringemenet and saying not nice things about North Face.2 I find the whole thing ridiculous on both sides. First, apparently Mr. Winklemann in response to a cease and desist promptly offered to stop--for a $1 million buyout.3 Second, instead of negotiating or some other extra-judicial tactic, North Face launched a shock and awe trademark offensive.4 Granted, I'm not sure what other remedies there are, but suing the pants off of a college student (sound familiar?) never seems to be a popular idea.
Undoubtedly there is an issue with dilution here, possibly infringement and the North Face has a more than colorable claim. The real issue is something the RIAA ran into a few years ago, are you willing to get some egg on your face to protect your rights in a "small potatoes" setting? The corporate answer is yes, but the average joe's answer is probably no.
1: The South Butt, http://www.thesouthbutt.com (last visited Dec. 24, 2009).
2: Debra Cassens Weiss, North Face Sues The South Butt for Trademark Infringement, ABA Journal, available at http://www.abajournal.com/weekly/article/the_north_face_sues_the_south_butt_for_trademark_infringement.
3: Id.
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
Thursday, December 24, 2009
Thursday, December 17, 2009
The Force is Strong With This One
So George Lucas, creator of the multi-billion dollar empire known as "Star Wars" (and a few other notable movies) just lost a British copyright case over Mr. Ainsworth, a prop designer's use of original molds from 1976 to create Stormtrooper helmets.1
The U.K. court's decision attempted to discern whether the helmets were protectable as sculptures, ultimately decided they were not based on U.K. caselaw and the applicable facts in question (bummer for Mr. Ainsworth).2 Also notable was the U.K. court's refusal to extend jurisdiction to the US and allow the designer to avoid paying U.S. damages because of his limited contacts (just had a Civil Procedure I flashback....).3 The court did include an admonition to Mr. Ainsworth that he should probably not sell any more helmets to the U.S. Excellent idea Judge.
Overall, I think it's an interesting story because there are some copyright holders who are well known to be extremely protective of their copyrights or other rights. I don't have anything against this, except for the David v. Goliath court matchups that often result. Lucasfilm suing a London prop designer, Yoko Ono reigning in the use of the incredibly popular Beatles' music, etc. These people are acting well within their rights4 (generally) but there are times where I feel like the fight is not worth the time and expense to hire expensive copyright lawyers to sue some little guy. The counter argument of course is that if you DON'T enforce as strictly as they do, more people will infringe, etc. The slippery slope argument, which to be honest, has never held much water with me in the first place. Empirical research has demonstrated that a copyright's value is usually short lived.5 Mr. Lucas's and Mr. Lennon's works are atypical and for that reason perhaps, they should be more vigilant. And the debate continues...
Happy Holidays
1: Lucas v. Ainsworth, [2008] EWHC 1878 (Ch) (U.K.).
2: Id.
3: Id.
4: See 17 U.S.C. § 106.
5: I don't actually have any empirical research for this...if someone does and would like to share, that would be fabulous.
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
The U.K. court's decision attempted to discern whether the helmets were protectable as sculptures, ultimately decided they were not based on U.K. caselaw and the applicable facts in question (bummer for Mr. Ainsworth).2 Also notable was the U.K. court's refusal to extend jurisdiction to the US and allow the designer to avoid paying U.S. damages because of his limited contacts (just had a Civil Procedure I flashback....).3 The court did include an admonition to Mr. Ainsworth that he should probably not sell any more helmets to the U.S. Excellent idea Judge.
Overall, I think it's an interesting story because there are some copyright holders who are well known to be extremely protective of their copyrights or other rights. I don't have anything against this, except for the David v. Goliath court matchups that often result. Lucasfilm suing a London prop designer, Yoko Ono reigning in the use of the incredibly popular Beatles' music, etc. These people are acting well within their rights4 (generally) but there are times where I feel like the fight is not worth the time and expense to hire expensive copyright lawyers to sue some little guy. The counter argument of course is that if you DON'T enforce as strictly as they do, more people will infringe, etc. The slippery slope argument, which to be honest, has never held much water with me in the first place. Empirical research has demonstrated that a copyright's value is usually short lived.5 Mr. Lucas's and Mr. Lennon's works are atypical and for that reason perhaps, they should be more vigilant. And the debate continues...
Happy Holidays
1: Lucas v. Ainsworth, [2008] EWHC 1878 (Ch) (U.K.).
2: Id.
3: Id.
4: See 17 U.S.C. § 106.
5: I don't actually have any empirical research for this...if someone does and would like to share, that would be fabulous.
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
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