A drag queen environmentalist builds a public identity that echoes one of the most recognized outdoor brands in the world. The names rhyme, the values overlap, the audiences intersect. Now both parties have to figure out what to do about it.

To me, this feels less like an infringement story and more like a relationship story. Specifically, what happens when two very different energies (a brand’s need for consistency and a creator’s need for creative freedom) occupy overlapping space, and neither side has built the architecture to make that coexistence work.

I’m a cooperative lawyer, which means I spend a lot of time thinking about how people create “law” between themselves through contracts. Not the law handed down by statutes, but the private agreements that shape how parties actually work together. Statute sets the floor. Contracts build the room you live in.

The Patagonia and Pattie Gonia dynamic is a useful case study for this kind of thinking, because it puts the core question in focus: once you know what the law requires, how do you creatively contract to get the best of both worlds?

I. Start with the floor: what trademark statute actually demands

Before anyone can negotiate creatively, everyone needs to understand what’s non-negotiable. Trademark law doesn’t impose a duty to sue everyone who comes near your name. That’s a myth, and it’s one that poisons a lot of relationships before they even start.

What the law actually does is create a set of decay mechanisms. If a brand fails to avoid them, the trademark erodes. There are really only a few.

First, you have to keep using the mark. Stop using it with no intent to resume, and it can be declared abandoned. Three consecutive years of nonuse creates a legal presumption that you’ve walked away.

Second, you have to keep the mark distinctive. If your brand name becomes the generic word for the product (think “aspirin” or “escalator”), the trademark dies. This is why brands care about how their name is used in public.

Third, if you let someone else use your mark, you need to maintain quality control over that use. A casual “sure, go ahead” without any oversight is what the law calls naked licensing, and it can destroy the mark just as surely as abandonment.

Fourth, if the mark is famous, there’s an additional layer. The law provides protection against dilution, which is the gradual weakening of a mark’s distinctiveness through unauthorized association, even when no one is confused about who made what.

That’s the floor. It’s real, it’s important, and it’s not optional. But notice what it doesn’t say. It doesn’t say you must be adversarial. It doesn’t say you can’t collaborate with someone whose name echoes yours. It doesn’t say the only tool in the box is a cease-and-desist letter.

It says: prevent decay. How you prevent it is where the creative work begins.

II. Now build the room: what contracts can create

This is the part that excites me as a cooperative lawyer. Once you’ve mapped the statutory floor, you’re looking at an enormous space for private ordering. Two parties, negotiating in good faith, can design a relationship that satisfies every legal requirement while preserving what makes each side valuable.

Think about what Patagonia and Pattie Gonia actually need from each other (or at minimum, from a shared resolution):

The brand needs assurance that its mark won’t decay. It needs to show that consumer confusion is managed, that any authorized use meets quality standards, and that the mark’s distinctiveness is protected. Those are real needs rooted in real legal consequences.

The creator needs to keep their identity, their voice, and their community intact. A name that’s become synonymous with a public persona, a body of activism, and a livelihood isn’t a branding exercise. It’s a life.

A cooperative approach asks: can we write an agreement that gives both sides what they actually need?

I think the answer is almost always yes, and the tools are well established.

· Coexistence agreements let two parties share adjacent space in the marketplace under defined conditions. They can specify which channels, audiences, and product categories each party operates in. They can address how each party will communicate (or not communicate) affiliation. Trademark authorities give these agreements real weight when they’re thoughtfully constructed. They’re a way of saying: we see the overlap, we’ve assessed the risk, and here’s our plan.

· Creator-adapted licenses address the quality-control requirement without strangling the creative work. The law says a trademark owner must maintain oversight of licensed uses. It doesn’t say that oversight has to mean approving every Instagram caption. A well-drafted license can set clear boundaries (don’t replicate our logo, don’t claim sponsorship that doesn’t exist, meet baseline product standards) while leaving tone, voice, aesthetic, and message entirely in the creator’s hands.

· Pilot structures with built-in renegotiation let both sides test the relationship before committing to permanent terms. A 90-day scoped collaboration with a scheduled review is less risky than a sweeping agreement, and it generates real information about what works. Pair that with a graduated dispute process (conversation first, then mediation, then formal remedies) and you’ve replaced the escalation cliff with a ramp.

None of these instruments require either party to pretend the tension doesn’t exist. They make the tension productive.

III. Why the relationship dynamics matter as much as the legal terms

Here’s what I’ve learned from cooperative practice: the contract is only as good as the relational dynamics underneath it.

The most common failure I see isn’t bad faith, it’s vague agreement. Two parties leave a conversation believing they’re aligned because the language felt warm (“we’ll keep that in mind,” “there’s room for both of us,” “we’re on the same page”). But none of the hard questions got answered. What’s the scope? Who approves what? What happens when someone’s role changes and institutional memory fades? What’s the process when something goes sideways?

Without those specifics, the relationship has no scaffolding. And without scaffolding, conflicts don’t escalate gradually. They jump from friendly to legal in a single step, because there’s no designed middle ground.

This pattern is especially acute when the two parties operate on fundamentally different logics. A brand’s legal team is trained to eliminate ambiguity. Ambiguity is where liability lives. A creator working in camp, satire, or identity performance often treats ambiguity as the medium itself. Neither orientation is wrong. But they are incompatible unless someone does the translation work.

That translation work is, I believe, the highest-value contribution a lawyer can make. Not drafting aggressive letters. Not capitulating to avoid conflict. Building the governance architecture that lets two different energies coexist inside a shared structure.

IV. What changes if we change the frame

When this kind of dispute gets covered as “brand versus creator,” the implied question is: who’s the villain? That framing is satisfying but useless.

When you reframe it as a relationship design problem, the question becomes: what would it take for both parties to get what they actually need? That question has answers. They live in the specifics of well-constructed agreements, grounded in statutory requirements, shaped by the actual interests and identities of the people involved.

For brands, the practical takeaway is this: your trademark obligations are real, but they’re narrower than the “sue everyone” myth suggests. You can protect your mark and build generous, creative relationships with aligned communities.

For creators, the takeaway is equally direct: a brand’s legal attention isn’t automatically an attack. The same system that protects a trademark could, if you negotiate well, protect your right to operate alongside it on defined terms.

For both sides, the next step is the same. Don’t wait for the conflict to name itself. Build the relational architecture before you need it. Map the statutory floor, then design the room together.

Until next time,

Fatimeh