The Anchor Plate : Intellectual Property Lawyers & Attorneys : BrickHouse Law Group : Open-Price Lawyering, Hourly Billing : St. Louis, Missouri

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Can you tell the difference between a face and a butt? Sounds like a fairly simple question, right? I suspect most people would say that, yes, as a matter of fact, they can tell the difference between a face and a butt. That's certainly what Jimmy Winkleman and his small St. Louis company The South Butt hope. The folks at The North Face, on the other hand, are praying that you're confused.

The North Face filed a trademark infringement suit against The South Butt in mid-December in the Eastern District of Missouri. The defendant is a local kid who started his line of South Butt clothing to pay for college, selling it out of his parents' pharmacy. Claiming to be a parody of the famous North Face line, South Butt has taken a very aggressive media stance, clearly trying to win the case (read: drive a good settlement) via public opinion. In fact, the disclaimer on the media page on the South Butt website says that if you can't tell the difference between a face and a butt, buy North Face!  

The Eighth Circuit rules here, however, and that so-called parody defense (which doesn't really exist under trademark law) isn't going to mean a whole lot if survey evidence shows a likelihood of confusion. For this reason, it will be interesting to see what kinds of survey's are ultimately admitted -- North Face has a much stronger case if it can show the two marks as they are used on virtually identical lines of clothing, whereas South Butt surely wants the marks to simply be viewed side-by-side. 

One thing is for sure -- sales of South Butt clothing have gone through the roof since news of the lawsuit hit.  It remains to be seen who will get to keep the profits from those sales.