Abercrombie & Fitch not amused by parody site, but zombies have last laugh

Abercrombie & Fitch makes millions on its reputation as a bastion of khaki apparel. But Chad Nestor of St. Paul, Minnesota takes offence that the company has Young America under its spell. So when the clothing company demanded that he remove his parody site, he was ready for a fight.

Chad's site looks similar to the A&F site; but the photographs of models that grace Aberzombie.com's pages are enhanced by psychedelic eyes and cartoon moustaches. The real Abercrombie argued that the models were "misappropriated" from its catalogue and web site. It also said that the only difference between the Chad's domain name and its own (abercrombie.com) was the replacement of the letters "cr" with a "z", making it confusingly similar to its own.

So A&F made a complaint to the World Intellectual Property Organisation, asking an arbitrator to transfer Chad's domain name. It's not its first visit - in September 2001, it defeated a parody argument from a porn site that was using the name AbercrombieAndFilth.com

Chad doesn't do porn, and he pointed out that the photos of models on his site were in fact purchased from a royalty-free stock photography company in Chicago (they just happen to be wearing bland clothes that look similar to A&F clothes).

He also acknowledged the spelling difference between the domain names. But he observed that A&F "conveniently miss that this difference creates an entirely new word with its own independent meaning, and is not simply a deliberate misspelling used to cause confusion."

Winning over panellist Dennis A. Foster, Chad grabbed an opportunity to champion his cause. He explained that a "zombie" is "universally known as a being who is under the spell of another." Reaching for his dictionary, Chad backed this with a quote from Webster's: "a supernatural power through which a corpse supposedly is brought to a state of trance-like animation and made to obey the commands of the person exercising the power."

Ruling in favour of Chad Nestor, the panellist wrote:

"Although 'zombie' preceded by 'aber' might call to mind [A&F's] marks, especially in the context of [Chad Nestor's] business of selling t-shirts, the Panel finds that the public would not confuse [Chad Nestor] for [A&F], and thus Abercrombie and Aberzombie are not confusingly similar. This of course also means that Aberzombie is not confusingly similar to the Complainants' Abercrombie & Fitch trade mark."

Accordingly, the panellist ruled that the disputed domain name shall remain with Chad Nestor, meaning he can continue his campaign.

As Chad puts it, why buy "an overrated, over-commercialized, logo emblazoned just-for-the-sake-of-wearing-a-shirt-with-their-logo-on-it tee shirt" when they could be wearing an "original" Aberzombie tee?

"Be yourself," says Chad. "Somebody has bloody well got to."

See:

Abercrombie.com

The WIPO decision