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Patagonia is in hot water over its legal action against a drag queen, but as lawyers suggest, businesses face a double-edged sword when it comes to protecting their trademarks.
A drag queen artist and environmentalist, Wyn Wiley, was sued by the US outdoor retailer Patagonia, which alleged the performer violated its trademark by going professionally by the name ‘Pattie Gonia’ for $1 (plus legal fees).
Maria Ward-Brennan joins the Business As Usual team to explain the story.
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0:00
Welcome back to Business as Usual. Now,
0:02
the outdoor brand Patagonia, known for
0:04
its gilets aimed at trendy corporate
0:07
types, is taking Patty Gonia to court.
0:11
To clarify, Patty Gonia is a drag queen
0:13
who's being taken to court for
0:15
infringement of trademark for damages
0:17
of, wait for it, a dollar.
0:21
There's a lot going on here, but our
0:22
professional services editor, Maria Ward
0:24
Brennan, is here to talk us through what
0:26
the hell is going on. Maria, make sense
0:29
of it for us.
0:30
>> Yes, it's not every day you see drag
0:31
queen getting sued in the headline, but,
0:34
you know, it today is the day for that.
0:37
Um, so yeah, this case is obviously over
0:38
in the US. Um, Patagonia has sort of had
0:42
uh sort of issues with the fact that
0:44
quite similar branding name in terms of
0:46
the drag queen name. Um, it's sort of
0:49
similar to the brand name of Patagonia.
0:51
So, you know, as a usual with
0:53
businesses, and especially business of
0:54
that size, they will have their own
0:56
trademark that they pay for, that they
0:58
want to keep up-to-date. And you, you
1:01
know, the from what they're seeing with
1:02
this is this person is infringing on
1:04
that by using the brand to sell off
1:06
their
1:07
>> But that just feels crazy because this
1:08
is so obviously a parody. Um, no no
1:11
reasonably minded person could say, "Oh,
1:13
actually Oh, actually Patagonia is now
1:16
is now a a drag queen and a a cabaret
1:17
performer." This is someone who, just
1:19
from what I was looking at, was doing
1:21
like like raising a lot of money for
1:22
charity, and clearly just doing parody
1:24
shows with very clearly not actually
1:26
wearing Patagonia. Why why do they feel
1:28
like they need to put this case forward?
1:30
And why for such a nominal fee?
1:31
>> Yes, so um I I can understand where the
1:34
outcry is. So, there's there's been a
1:35
lot of media backlash from people, from
1:37
fans, and from um from their own fans as
1:39
well. Um, but you can understand it from
1:41
the business perspective of this. In
1:43
order to have your trademark really
1:45
active and alert, and the the the brand
1:48
that you pay for, you know, you they're
1:50
quite hard to sort of secure over the
1:52
over the over the world. So, they take
1:54
this one, this was issued in the US. You
1:56
you really have to seek legal action.
1:58
You have to make sure people are not
1:59
infringing on it because if they're not
2:01
doing it, then there's no point to
2:02
having a trademark. Trademarks are
2:03
redundant at that point.
2:05
>> How do you balance the PR fallout with
2:08
the legal benefit? I mean, McDonald's,
2:10
you know, were quite famous for taking
2:12
people to court for calling themselves
2:14
McChina or or if they were takeaway. I
2:17
quite that is one actually Wimbledon.
2:19
>> 100% and like this is this
2:20
>> No, but you've called them out.
2:22
>> [laughter]
2:22
>> But like, you know, that it's not a good
2:24
reputation.
2:25
>> You get taking the little people, you
2:26
know, to court.
2:27
>> And it's not and this is where
2:28
businesses find themselves and
2:30
especially a bigger entity like Zara is
2:31
probably your most well-known. Like they
2:33
get slapped on. It's very easy to do a
2:34
story and very easy for people who don't
2:36
understand the legality behind it.
2:38
>> Mhm.
2:38
>> Um but for brands at the end of the day,
2:40
they have the reputation to sort of
2:42
secure. They have they've bought and
2:44
secured this trademark. They this is the
2:46
legality of their business and you just
2:49
can't really have people running off
2:50
that cuz it makes the whole point
2:52
trademarks redundant. So, there is
2:54
issues around that and they will point
2:56
is that you know, lawyers will advise
2:58
them. It's a very tricky area of law
3:00
because again it's it's extremely a very
3:02
tricky area anyway.
3:03
>> But on what Matt was saying, like parody
3:04
law in America does exist and it is a
3:06
sort of loophole for copyright claims.
3:08
So, I don't know if either of you have
3:10
ever watched Nathan Fielder, he did a he
3:12
did a parody Dumb Starbucks and they
3:14
took him to court and lost. Uh because
3:16
it was quite clearly a parody of
3:18
Starbucks. So, do you think Pattygonia
3:21
has a leg to stand on?
3:22
>> Again, I think they are going to um try
3:25
and fight this. I think they're going to
3:26
fight it through the media first, but it
3:28
looks like Patagonia is going full, you
3:30
know, trying to issue
3:31
>> Well, they put out quite an apologetic
3:32
statement as well being like we feel
3:33
like we have to do this.
3:34
>> Yes.
3:35
>> Sort of no, like they they sort of they
3:36
do credit Patagonia for all of her
3:38
charity work and all
3:39
>> [laughter]
3:40
>> all that jazz. So, like so it does feel
3:41
like they they are they probably have a
3:42
big comms team who are crisis managing a
3:45
just an impossible comm situation.
3:47
>> And every lawyer who focus on the I've
3:49
spoken to trademark lawyers on this
3:51
issue that's going to be in our story as
3:52
well. Is the it is it is a very
3:54
difficult tightrope. Businesses are on a
3:56
double-edged sword. Damned if you do,
3:58
damned if you don't. But, at the end of
4:00
the day, it is all self-importance at
4:02
this point. You can't be worrying about
4:03
the the small smaller firm. You have to
4:06
worry about your own business. That's
4:07
the whole point of trademark.
4:08
>> But, you really, at the end of the day,
4:09
don't want to lose your trademark.
4:11
Maria, thank you very much. I'm sure
4:12
we'll have you back very soon in the
4:13
studio.
4:14
>> Thank you.
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