Oh my fucking god yâall bootlickers are driving me crazy.
Iâm a law student specializing in Intellectual Property, which includes Copyright and Trademark. Iâve studied these subjects and the law is clear that everything yâall said about Patagonia âlosing the trademarkâ if they donât sue Ms. Pattie is absolute bullshit.
Trademarks are only lost if they are abandoned by the user or if the product made by the company becomes so ubiquitous, everyday, and common that people start calling all types of that product by the trademark name. This is called genericide, because the trademark has become so generic, it is no longer an indicator of one singular source. Think Band-Aid or Thermos; we use those terms to refer to the generic products theyâre associated with. We call pretty much all sticky bandages Band-Aids and all containers used to keep things warm in Thermoses.
What Patagonia is doing is actually closer to suing for trademark infringement based on tarnishment, which means the infringer is using the trademark name in a way that makes the company look bad or associates the company with things like drugs or pornography. Queen Pattie Gonia is someone who raises awareness for climate and environmental activism. Nothing about Miss Goniaâs use of the name tarnishes Patagoniaâs brand.
The only possible argument the company has is that Miss Goniaâs queer identity could be seen as not âadult-friendlyâ but that very quickly slides into homophobic and moralistic territory that will absolutely be shot down by the court based on First Amendment rights. People are allowed to use ânot safe for work names,â based on caselaw that states that âlabels that are disparaging or morally offensiveâ are a violation of free speech because itâs peopleâs choice to say and use those names. For example, an all-Asian band applied for the trademark name âThe Chinksâ because they were taking the racially disparaging name and reclaiming it. The Trademark Office attempted to refuse to grant the bandâs trademark, and when the band sued, the Supreme Court sided with the band.
That got off on a little bit of a tangent, but the long and short of it is this: Patagonia has absolutely no basis for a trademark name. Any IP lawyer would say the same. The reason Patagonia is getting away with a frivolous suit like this is because they know their target is a member of a vulnerable minority. Miss Gonia is 100% correct that they are trying to bully her because they know she doesnât have the money to withstand a years-long expensive lawsuit.
Itâs because of idiotic bootlickers who kiss companiesâ asses like this that big corporations can get away with hurting independent creators. Patagonia does not have any chance at winning, but they know that just by filing and announcing their lawsuit against Miss Gonia, they are putting pressure on her to give up. If this lawsuit goes on, even if it doesnât make it to court and just goes to a judge for a quick summary judgment, Miss Gonia would still have to pay for a lawyer to defend her and lawyers cost more money than the average person has. Miss Gonia would win, but because Patagonia set the damages for $1, even if she did win, sheâd still end up in debt because in America, the typical rule is that each party pays for the cost of their own attorneyâs fees. The only time the opposing side would pay your lawyerâs fees is if you have a contract with them that says so, and thatâs usually only used in contracts between businesses or high profile individuals.
What Patagonia is doing is capitalizing on societyâs hatred for queer people and anyone resembling a trans woman. Miss Gonia is a drag queen, not trans as far as Iâm aware (though please do correct me if Iâm wrong) but itâs not like a big company cares to differentiate; theyâre just mad that a queer person is using their name in a way they donât like. Patagonia knows that this particular population has been facing harsh discrimination in society currently. By siding with them, people are actively harming the queer community. Donât pretend to hide behind trademark law to cover up your prejudices.
