Seeing Red -- or back to the Futura: if life's a Bitch, what's a trade mark?

While this Kat is currently absorbing as much US trade mark culture as he can, during his all-too-brief visit to Dallas for the International Trademark Association Meeting, that reliable and helpful Katfriend Miri Frankel (Aegis Media Americas) has been penning this guest post that reflects on lots of questions: the balance between trade mark protection and free speech, the interplay between parody and the design aesthetic and an old favourite: whether Americans really get irony or not [on which see items here, here and here]. Miri writes as follows [Merpel adds a naughty word advisory]:

Supreme Free Speech 

A streetwear brawl in New York is pitting trade mark rights against parody and First Amendment free speech.  Supreme, a men’s streetwear brand, is suing Married to the Mob (MOB), a women’s streetwear brand, for trade mark infringement.  Supreme, which uses a logo of the word Supreme in white Futura Bold Italic font within a solid red rectangular box, claims that MOB’s apparel designs featuring the words “Supreme Bitch” in Futura Bold Italic font within a solid red rectangular box infringe the Supreme's trade mark.  

There is no denying the similarity of the logos used by the two brands.  In fact, MOB founder Leah McSweeney acknowledges that she designed the Supreme Bitch tees in 2004 as a statement against the misogynistic values embedded in the Supreme brand.  At that time, she showed her t-shirt design to Supreme’s founder James Jebbia, and Jebbia agreed to sell the MOB shirts in his retail store.  

So why is Jebbia suing McSweeney so many years later?  The catalysts are likely twofold: McSweeney filed a Class 25 trade mark application for the use of Supreme Bitch on apparel and hats.  In addition, superstar Rihanna was recently photographed (right left) wearing a Supreme Bitch hat, which instantly (and unsurprisingly) increased the MOB brand’s credibility and fame, as well as its sales. 

In response to the lawsuit filed by Supreme, McSweeney issued this statement:  

“As some of you may have heard, Supreme is suing me for $10 million over my "Supreme Bitch" design. I've been using this design since the first MOB collection in summer 2004. I even sold it as a tee at Union, a store owned and managed by Supreme's founder James Jebbia, who gave the design his blessing. Now, he's claiming that the design infringes his trade mark rights. 

… Supreme Bitch is one design of many; one slogan of many. And the use of the design has always been to make fun of the misogynistic vibe of Supreme and the boys who wear it. 

Bottom line is this: I don't think Supreme should be able to squash free speech or my right to utilize parody in my design aesthetic. It's one of the most powerful ways for me to comment on the boy's club mentality that's pervasive in the streetwear/skater world. The fact that Supreme is coming after MOB and me personally is just another example of the hostility that MOB -- the first women's street wear brand -- has faced from Day 1. And it's why the Supreme Bitch message is so important. …” 

Supreme, in fact, is quite familiar with the concept of parody.  Supreme regularly appropriates other brands and cultural references into its apparel designs, doing so presumably under theories of parody and free speech.   Even more basic, Jebbia acknowledges that he himself created his logo by appropriating the work of another: if the red and white text boxes remind you of the work of iconic artist Barbara Kruger, you would be correct in your association.  Jebbia used Kruger’s anti-capitalist and feminist artwork as the inspiration for his Supreme brand’s logo.  

Given that Supreme is challenging the validity of the incorporation of parody into apparel products, which it does regularly itself, and that it approved and allowed MOB’s sales for more than eight years before filing this lawsuit, Supreme is certainly a less-than-sympathetic plaintiff.  It seems to me that MOB will have the upper hand as this dispute continues.   

Acclaim magazine succinctly summed up this lawsuit:  

“Now, it’s up to the courts to decide who is legally in the right here. But on ideological grounds, surely the inherent irony of a company that’s built a large part of its reputation by producing unlicensed parodies time after time after time, then turning around and deciding to sue for trademark infringement isn’t lost on anyone. I mean, it’s almost as ridiculous as a brand that claims to be attacking the misogynistic world of streetwear and championing women’s rights by boldly printing the word ‘Bitch’ across their chests.” 

What does Kruger have to say about this trade mark battle?  When asked for comment by Acclaim, she responded by emailing this Word document notably titled “fools.doc”: 

History of Supreme and MOB, and link to MOB’s Answer to the Complaint, here