Here’s a funny and interesting fashion knockoff lawsuit. It’s interesting because it involves a not-so-common free speech/parody defense (and its funny just because its funny). We’ve all heard of North Face, the yosemite-ish hiking apparel maker. But now there’s “South Butt,” apparently offering similar clothing and obviously ripping off the logo and typeface.

South Butt is clearly having a ball with the lawsuit and attendant publicity, reminding us in official court papers and everywhere else that the public “is aware of the difference between a face an a butt.” And that is, of course, just the right question to be asking–whether or not the public would be confused. Add to that the compelling interest in robust free speech and the importance of parody in marketplace of ideas, and South Butt has a pretty good point. And its not just a clever turn of phrase: South Butt’s 19-year old creator claims to be commenting on consumerist culture by sending up the prominence of the North Face logo. That of courts ups the free speech quotient.

So when does free speech and parody trump trademark? Reviewing the case law, McCarthy concludes that “Comparing the cases, a cynic would say that it appears that resolution may turn on no more than how clever and humorous the court thinks the defendant’s usage is. If it is relatively innocent and clever, it will be allowed.” As an example, a federal court in Ohio held that the slogan THIS BUD’S FOR YOU in a florist’s ad campaign was not an infringement of same Budweiser beer slogan. “Certainly the promotion of something as wholesome, delectable and appetizing as a dewy rosebud cannot be said to disparage Anheuser-Busch’s slogan or its product.”

And the there’s the stuffed dog chew toys called CHEWY VUITON, CHEWNEL #5, DOG PERIGNON and SNIFFANY & CO. The court allowed if, reasoning

[T]he [defendant's] “Chewy Vuiton” dog toy undoubtedly and deliberately conjures up the famous [plaintiff's] marks and trade dress, but at the same time, it communicates that it is not the [plaintiff's] product … . [T]he juxtaposition of the similar and dissimilar-the irreverent representation and the idealized image of [plaintiff's] handbag-immediately conveys a joking and amusing parody. The furry little “Chewy Vuiton” imitation, as something to be chewed by a dog, pokes fun at the elegance and expensiveness of a LOUIS VUITTON handbag, which must not be chewed by a dog.

All in all, I would allow South Butt if they are really making a social comment.