TCOs F & G. Laura Etheridge and Rita O’Donnell, the CEO and Creative Director of Clean Clothes (a Texas-based lesbian women’s clothing line) brainstormed together and came up with a tagline for their new slacks line: “Masculine Attitude

TCOs F & G. Laura Etheridge and Rita O’Donnell, the CEO and Creative Director of Clean Clothes (a Texas-based lesbian women’s clothing line) brainstormed together and came up with a tagline for their new slacks line: “Masculine Attitude, Feminine Fit.” They market the product on YouTube, Twitter, and Facebook showcasing their “Funky Femme” slacks collection, made from a material that resembles alpaca wool but is actually organic cotton. To further the advertising impact, the team uses an Ellen DeGeneres look-alike in the YouTube video, where the model does the “Ellen dance” – and mouths “love the pants” as she points to her legs, and then walks off leading an Alpaca by a halter. Within months, the slacks are a huge hit in the lesbian community. Clean Clothes sends a letter to their attorney asking him to trademark their tagline and moves forward without another thought about it.

Meanwhile, Men2Wimmin, a French company with a branch in New York, has established a huge following in the gay and cross-dressing community. It has used the tagline “Feminine Attitude, Masculine Fit” for many years to advertise its drag queen dress collection for men on billboards, the Internet, and television.

Ellen DeGeneres learns that her likeness is being used to advertise for Clean Clothes. She watches the ad and is incensed. She spends the next week on her show bashing the Clean Clothes company and states that she would never endorse the use of Alpaca wool for clothing as she feels shearing them is cruel. (She doesn’t catch that the pants are really made from cotton.) Further, she says she feels that lesbian women should not need to shop at special stores, although she admits she often shops in the men’s department at Joseph A. Bank (JOSB).  Her comments cause a precipitous drop in sales at both Joseph A. Bank (JOSB) and Clean Clothes. Using the above fact pattern, analyze the following questions fully.

       1. TCO F. Men2Wimmin (M2W) sends a cease and desist letter to Clean Clothes (CC) demanding CC stop using M2W’s tagline, which is registered with the Trademark Office. Clean Clothes responds, stating that (a) CC’s tagline is different enough as not to violate the trademark, (b) CC didn’t know about M2W’s tagline so they couldn’t have copied it, and (c) Men2Wimmin has no damages and therefore can’t sue Clean Clothes. Analyze the case for Men2Wimmin, including the elements of any case they have, and explaining any defenses that Clean Clothes might raise against them. What damages can they request, and do you think they will get them? Why or why not? (Points : 30)