Legal prose can often do with some spicing up. But the attorney for the 19-year-old creator of a “parody” outdoor clothing line may have gone too far in denying allegations that The South Butt violates the trademark rights of The North Face brand.

In a lawsuit filed last month, the North Face did not see the humor in The South Butt, saying it is an “inferior knockoff” that “directly and unabashedly infringes and dilutes The North Face's famous trademarks and duplicates The North Face’s trade dress in its iconic Denali jacket.”

College freshman Jimmy Winkelmann founded The South Butt in 2007 to poke fun at brand-name consumerism, adopting the silhouette of a rump as his logo and “Never Stop Relaxing” as his slogan. The North Face uses the slogan “Never Stop Exploring” and has a similar logo.

Albert Watkins

Winkelmann's answer to the complaint -– composed by attorney Albert S. Watkins of Kodner Watkins Muchnick & Weigley in Clayton, Mo. -- ridicules The North Face's claims. “But for the actions of North Face, the South Butt saga might have been relegated to local Friday fish-fry banter,” it argues.

The brief also lists various synonyms for the word “butt,” includes a photograph of Winkelmann, and describes him as “a cherubic teenager” and “a handsome cross between Mad Magazine's Alfred E. Newman of 'What me Worry' fame and Skippy the Punk from the Midwest.”

“While Jimmy may have turned 19 years of age, and while he looks 14 and, to some, acts 12,” Watkins concludes, “Jimmy and The South Butt have no choice but to defend the present action to protect the integrity of the marketplace, freedom of choice for the consumer, freedom of speech for all, and the fundamental tenets of capitalism, competition and the American Way.”

Watkins, who was admitted to the Missouri Bar in 1985, evidently isn't shy about expressing his humor. When a St. Louis weekly newspaper asked readers, “Are you still in touch with the person to whom you lost your virginity?” he responded, "I keep in contact with all the women to whom I've lost my virginity. I like to believe I lose a little each time the wind blows."

Reaction to his answer brief on the South Butt's website has been mixed. “A masterful piece of legal writing,” raved one commenter, while another said, “No attorney worth his salt would waste limited answer space with this drivel.”

It certainly seems absurd for The North Face to suggest that consumers will not be able, as Watkins puts it, to tell “the difference between a face and a butt.” But the case raises the weighty legal issue of whether the First Amendment protects “parody apparel products” and Watkins may have gotten off on the wrong foot if the judge does not appreciate his humor.

The North Face also sued the St. Louis drugstore which distributes The South Butt merchandise. Counsel for Williams Pharmacy took a more conventional approach in its opposition to The North Face's motion for a preliminary injunction.

“[T]here is no possibility ... that the outdoor enthusiast is being presented with the SouthButt product as similar to the NorthFace product,” Thomas M. Blumenthal argues. “The parody is blatant. The sophistication of the consumer and the lack of predatory intent are dispositive. The consumer is highly sophisticated, as pled by Plaintiff, and the intent is to make fun of those who wear the NorthFace to look 'cool' or 'athletic' without truly being so.”

By Matthew Heller
1/15/10