Fleischut Comments on North Face v. South Butt

In the December 28, 2009 issue of Missouri Lawyers Weekly, Senniger Powers attorney Paul Fleischut is quoted in the article "Clothing Giant Faces Down South Butt." The article discusses the trademark infringement lawsuit filed by North Face Apparel Corporation against South Butt LLC. Fleischut also discussed the case in a December 28 Fox2News interview .

The seven claims filed by North Face under national and Missouri trademark law essentially revolve around two causes of action: infringement and dilution. Fleischut, chair of Senniger Powers' trademark department, is among the trademark experts who think the infringement claims are moot, saying, "I think that North Face would probably have a pretty tall order there. I don't think that those traditional counts are where the action will be."

In order to prevail against South Butt's parody defense, Fleischut explains that North Face would have "to prove that this South Butt product is creating an unwholesome, or unsavory, or degrading association...The question is, 'Is a butt something that qualifies as something that's making an unwholesome, or unsavory, or degrading association?' My gut reaction is that would not qualify." He cites a 1987 case with similar circumstances, Jordache v. Lardashe, in which Lardashe successfully defended itself against Jordache's dilution claims.

Fleischut summarizes that "North Face has a right to prevent others from causing confusion, and a right to prevent an unwholesome, unsavory, or degrading association. But there is no right not to be made fun of."