Hey North Face! Our Story About You Flipping Out Over 'Hey Fuck Face' Is Not Trademark Infringement
from the hey-fuck-face,-hire-better-brand-protection dept
Update: After this article was published The North Face reached out to me, admitting that it was "ridiculous" to send this threat letter, and that they were using the mistake to improve their processes to (hopefully) avoid this kind of thing happening again.
The "brand protection" industry is endlessly fascinating to me, in that it seems to be a near total scam that preys on gullible big company execs who believe that if anyone uses their brand or logos in a way they don't approve of, it'll mean the end of the world. That's not to say there aren't legitimate "brand protection" steps that large companies need to take, but so much of it is overblown fluff and nonsense, and all of the various "brand protection" companies out there feel the need to justify whatever bizarrely lucrative contracts these giant companies hand out. So they completely overreact to the smallest of things -- and the end result is not brand protection, so much as brand destruction for demonstrating just how over aggressive you are as a company.
The clothing company The North Face seems to have a particularly itchy trigger finger in overreacting based on its "brand protection" strategies -- and their latest target is... Techdirt. Now, I'm pretty fucking sure we don't compete with The North Face in any real way (I don't think our limited selection of self-designed tech policy nerd t-shirts counts). We do, however, sometimes report on the ridiculous ways in which The North Face overreacts to parodies.
It started, back in 2009, when The North Face decided to sue a student who created a sophomoric parody line of clothing called South Butt. Absolutely no one was going to be confused about where the clothing was coming from. No one was accidentally going to buy South Butt clothing, thinking it was really from The North Face. There was no likelihood of confusion. There was no dilution or tarnishment. There was just over-protective marketing execs who didn't like being made fun of. Unfortunately, the judge in the case didn't dismiss it upfront, meaning that it was about to get super expensive, and The North Face's lawyers started dragging the family of the student through the mud. Given all that, it was unfortunate, but not surprising, that South Butt settled the case. Of course, a few years later, South Butt showed up again, but this time as... Butt Face, giving The North Face lawyers some billable hours.
Anyway, soon after all that happened, we wrote about a different overreaction by The North Face. Some guy made parody patches mocking The North Face (it's not even clear if he actually made any patches, or just Photoshopped images of such patches). A key one was a patch with the phrase "Hey Fuck Face" on it, and The North Face's three-line Half Dome wannabe logo design.
I mean, not the most clever of parodies, but a parody. "Mr. Smashy" posted the image to Flickr, and the hypersensitive lawbots at The North Face sent Flickr/Yahoo a takedown notice. And then, we at Techdirt wrote about this completely stupid overreaction by The North Face.
That was nine years ago. On Friday, we got a notice from a company "Yellow Brand Productions" on behalf of The North Face, complete with legalistic sounding language to make us think that us writing a story about The North Face overreacting to a parody image of a parody patch that has never actually been sold anywhere is actually trademark infringement.
Subject: Notice of infringement - techdirt.com
Date: November 12, 2021
Dear Sir/Madam,
I, the undersigned, state under penalty of perjury that:
Intellectual Property Owner: The North Face Apparel Corp.
- I am the owner, and/or an agent authorized to act on behalf of the owner, of certain intellectual property rights.
- I have a good faith belief that the listings identified hereto offer items and/or contain materials that infringe on The North Face and Design trademark (see attached file) and are not authorized by the Intellectual Property Owner, its agent, and/or the law.
- Please act expeditiously to remove the listings identified.
Email Address for communication: [redacted] Website: https://www.thenorthface.com/URLs at Issue:
Best regards,
Yellow Brand Protection
on behalf of,
The North Face Apparel Corp.
The email also, helpfully, included the Trademark Registration of The North Face logo, which notes that it covers specific trademark categories including backpacks, sleeping bags, tents, and clothing. As far as I know, a news article about a stupid overreaction to parody is not one of those things. The "notice of infringement" also included a signed letter from Christine Hernandez, saying that Yellow Brand productions and Matthew Leclerc are "authorized to represent The North Face, in trademark enforcement". Usefully, this lets me know who I should address our response to: Christine Hernandez, who (according to her LinkedIn profile) is currently General Counsel at "VF Corporation" which is the parent company to a bunch of outdoor-focused brands that I will now start keeping track of to avoid ever supporting again, including The North Face, Vans, Timberland, Altra, Icebreaker, Smartwool, Jansport, Eastpak and more (this is unfortunate as I have a few Icebreaker and Smartwool products, and didn't realize they were owned by an evil overly aggressive corporate conglomerate bully).
So, here's our response:
Dear Christine Hernandez,
I wanted to make sure you were aware that you were throwing away money with "Yellow Brand Protections" (who itself appears to have bought up its own conglomerate called Corsearch.) While the company promises to "protect your brand to grow its value" and claims that it uses "advanced technology to detect, monitor and protect your brands," it appears that it employs people who can't tell a news story about your company's itchy trademark trigger finger from actual infringement.
Sending out completely bogus trademark threat letters to news organizations covering your company's bad practices seems like the kind of thing that might come back to bite your brand. In fact, rather than "brand protection" this feels a lot like "brand destruction."
I'd suggest revisiting your contracts with "brand protection" companies who you give the authority to use your name in bogus threat letters, and maybe (just maybe) easing up on believing you need to threaten everyone over parodies.
Sincerely,
Techdirt
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: brand protection, hey fuck face, moron in a hurry, trademark, use in commerce
Companies: corsearch, the north face, vf corporation, yellow brand protections
Reader Comments
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Hire dumbass lawyers, get dumbass results.
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Wow. Just Wow.
This is hideously SLAPPy and a waste of legal resources. "HEY FUCK FACE" is actually pretty appropriate for The North Face since they pulled this bullshit...
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This has entertainment potential all over it...
So I immediately placed my order at https://www.thepopcornfactory.com
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Re: This has entertainment potential all over it...
You're going to need a lot of kernels for this spectacle, though...
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You were too nice
I would have told them to pound sand, kiss my ass, and get fucked.
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Post the Reply
PLEASE PLEASE PLEASE PLEASE!!!
Post the reply if Christine Hernandez manages to do so!!!!
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Reputation
I agree with your sentiment, Mike. Every time I see a NF jacket I think about South Butt and that whole debacle. I want to tell the person wearing it about how anal they, are but don't because I figured they won't understand or care. As for me and my family, we won't touch a NF product. And now thanks to this story, I know a bunch of other brands to avoid.
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Good news
I'm actually moving to a much colder climate and this just made my coat shopping simpler as I can now remove any North Face options from the list.
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I'm not sure I would have had the self-control not to open with "Hey fuck-face".
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Reporting on a companys legal threats or lawyers actions is not copyright infringement its freedom of the press and free speech also parodys are protected by the first amendment that's basic legal theory lesson 1.
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and the next story is...
I can't wait to read your upcoming story about "Yellow Brand Protection" suing you for... defamation?
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Re: and the next story is...
Or more rather Toritous Interference with a Business Relationship.
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Why yellow?
Definition of yellow that applies here:
Cowardly
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Re:
Ummm, did you even read the article? This wasn't about copyright infringement, instead, had you read the article, you would have learned that it was about trademark infringement.
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Re: You were too nice
Oh, come on, the least you could've said was to tell them "Let me give you this bucket of sand and a mallet. Do you need instructions on what to do with them?"
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PS:
Govern yourself accordingly.
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Re:
Sorry, but that's the second lesson. The 1st lesson is "Always get the money up front".
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And in conclusion......
I once responded to a long rambling letter from a solicitor hinting at all sorts of dire consequences if we did not comply immediately with their clients wishes. I responded in all the ways the solicitor was tying to intimidate and bully by misrepresenting the truth and the law, and finished it off with the phrase "and in conclusion I would advise your client to get a better lawyer". They were not happy, but the legal-sounding threats reduced (from the solicitor at least. Not from their client who seemed to live on a different planet)
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You forgot to close with "Please govern yourself accordingly."
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Re:
Don't forget to add 'Behave yourself accordingly.' to the end of said letter.
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Mike is not a lawyer...
... otherwise, he might have simply referred them to Arkell v. Pressdram.
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Hey Mike,
I'm wondering if I duct tape three bananas to the wall in parody of the North Face logo and then have a monkey take the picture, who would get to claim infringement?
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Biggest, Most, Greatest...
I think they were just angry that they weren't parodied as "THE Fuck Face"
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I switched to Carhartt years ago. It wasn't a moral stance, it was more due to the fact that North Face pumps out garbage that falls the fuck apart. Knowing what I know now, I wouldn't go back to North Face even if they fixed their quality issues.
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Dear lawyers,
thanks a lot for clearly demonstrating you're total lack of due dilligence by threatening Techdirt.
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Reminds me a bit of Jordache Enterprises Inc. v Hogg Wyld Ltd. (which made Lardashe designer jeans). It did not go well for the plaintiff.
https://www.latimes.com/archives/la-xpm-1987-09-16-fi-5318-story.html
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Re: You were too nice
Or perhaps:
Subject Ha Ha
Body: HaHaHaHaHaHaHaHaHa!
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Re: Reputation
This. NF diluted their own brand, because while SB is forgettable, the reaction by NF really sticks in memory.
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Maybe instead of 'govern yourself accordingly'..
...this letter might rise to the level of 'snort my taint.'
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Re: Re: and the next story is...
Or, given the quality of their work, Doritos Interference with a Business Relationship…
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Re: and the next story is...
Unfortunately for the case, truth is an absolute defense to a defamation claim. Unfortunately for Techdirt, I fully expect Yellow Brand’s ‘lawyers’ to be so poorly educated they don’t know that.
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Re: Mike is not a lawyer...
No reason why you can’t use it as a non-lawyer.
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Re: Maybe instead of 'govern yourself accordingly'..
I was so hoping techdirt would have spent the money to hire Ken White to write the reply. It would have been worth every penny. Perhaps some sort of special get techdirt to hire Ken crowdfunding campaign could be started so future opportunities like this do not go to waste.
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'What do you mean theyre talking even more now?!'
Nothing like a little legal thuggery by a lawyer who very clearly did not research their target to spice your day up.
You'd think someone trying to threaten TD into silence would take five minutes to see how well that worked out for the previous people who tried the same stunt but nope, full steam ahead and damn the consequences(until it's too late).
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Re: Reputation
♬♫Goin' down to South Butt, gonna have myself a time.♬♫
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Re: Re: Maybe instead of 'govern yourself accordingly'..
I was so hoping techdirt would have spent the money to hire Ken White to write the reply. It would have been worth every penny.
Patience, my pretties. This is just step one.
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Re:
Something something "Outsource your reputation..."
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Re: Biggest, Most, Greatest...
Don't forget, Ohio State wants to own the word "The" so they would be getting threat letters from them as well.
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Hey, gotta generate those billable hours somehow.
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Re: 'What do you mean theyre talking even more now?!'
Barbra Streisand is alive and well and living in Malibu. We have pictures.
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Yellow
I'm guessing they chose the name yellow because they either like being peed on or they're cowards... or maybe both?
Of the few threats I've received from lawyer types, they were definitely "little" men hiding behind threats of 'the law' even though they were about as bright as they were successful (ie. not at all). When you point out that there's no law issue and it's a baseless threat to shut you up, then they start up with some bs about just sending it cause they're paid to.
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copyright swallows all
Interesting that the structure of the letter so closely mirrors a DMCA notice.
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Re: Re: Outsource your reputation
https://www.techdirt.com/articles/20210801/12074947284/funniest-most-insightful-comments-week-techdi rt.shtml#c4
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'I was just following orders', never a valid excuse
When you point out that there's no law issue and it's a baseless threat to shut you up, then they start up with some bs about just sending it cause they're paid to.
'I'm not acting like a thug because I want to I'm acting like a thug because I'm being paid very well to do so and see nothing wrong with earning a paycheck that way' is not the excuse they might think it is..
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Re:
PETA.
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So, Yellow Brand Protection just committed perjury? Is that something that Techdirt can sue over? Not that it's worth the cost, just wondering...
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Let's break down these bullet points.
I, the undersigned, state under penalty of perjury that:
I am the owner, and/or an agent authorized to act on behalf of the owner, of certain intellectual property rights.
You don't know which? Did you just copypasta or what?
I, the undersigned, state under penalty of perjury that:
I have a good faith belief that the listings identified hereto offer items and/or contain materials that infringe on The North Face and Design trademark (see attached file) and are not authorized by the Intellectual Property Owner, its agent, and/or the law.
Do you perjure yourself regularly, or is this a special occasion? Maybe you're new?
I, the undersigned, state under penalty of perjury that:
Please act expeditiously to remove the listings identified.
Did you mean or need to state that under penalty of perjury? I sure hope you are new.
So yeah, thanks for playing, come again.
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I approve this message.
As a meme, it has been perhaps overused.
However, Mike's letter is a more polite (but more wordy) version of "some asshole is using your name to send stupid letters".
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Re: I approve this message.
Alas, I fail the internets.
I was referring to this letter from the Cleveland Browns to a fan.
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Re: Re: Re: Maybe instead of 'govern yourself accordingly'..
I eagerly await the unveiling of the master plan.
"Ready EvilLaughter.mp3 on tape decks 1 and 2!"
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"I, the undersigned, state under penalty of perjury, that I do not have any understanding of trademark infringement."
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Re: Re:
To be fair, this would not nearly be the first time infringement of copyright and trademarks gets muddied together. Usually to the plaintiffs' benefit. Judges have a history of turning into pushovers if copyright gets mentioned.
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OHAI Christine Hernandez,
I'm from the internet, and I've come to tell you something important... you're an idiot.
It is a pity that the various state bars refuse to deal with litigators who misrepresent the law to mislead their clients to get a paycheck.
An article about the overly zealous responses by one of your clients seems like a bit to on the nose for you to target with your ill conceived stupidity.
Please to ask Wikipedia about 'The Streisand Effect'... we'll wait.
Now with that knowledge, perhaps look into who founded Techdirt.
Now wait just a moment for the lightbulb in your head to power up.
We sent a bogus letter to a news outlet over an article calling us out over what assholes were are in our overreach of "protecting" clients trademarks run by the guy who came up with 'The Streisand Effect'.
Now a lesser lawyer might just either not respond or quietly try to unring the bell, but not you Christine!
Declare war!
You can totes win this case.
Welcome to the big leagues.
I look forward to mocking you again & again & again & again & again if you manage to keep your position. I mean you did way more harm to the North Face brand than anyone else around these parts.
Hell if North Face put half as much effort into quality of their items as they did in policing (harassing, intimidating) anyone who might be remotely close to their IP people might still buy their products.
Now they are known not only for shitty merch, but a shitty bully attitude. They have you to thank for that Christine Hernandez.
In closing...
Bye Christine Hernandez, you have no power here (this is the internet) leave before someone drops a parody on you...too.
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Re: Yellow
Oh, that must be why they call it IP!
It's yellow in their eyes.
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Re: You were too nice
That sounds really hot, actually.
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reads like: mz Hernandez volunteers for five years imprisonment.
Wish she would follow through with that.
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Guessing....
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Re: And in conclusion......
Yeah, that can happen. Back in the day when I was a computer guy, I got a letter from one of those guys objecting to some of my material criticizing his client. The response was to provide him with further material which his client may have missed.
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Re: Re:
Well, to be fair, it's also not copyright infringement. Other things it's not include arson, murder, jaywalking, or selling jam with 6 different fruits.
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