We’ve all pushed our luck at times. But few have pushed it as far as the Sydney beach brand that just won the first round of a trademark dispute over the Shady name.
The company named its beach umbrellas Swim Shady. Yep, a straight lift from one of the most recognisable personas in the world, Eminem’s Slim Shady.
When I first saw the company advertising on TikTok last year, I didn’t think, “How wonderfully original.” I thought, “What a rip-off.”
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Apparently, Eminem’s lawyers felt much the same, because the dispute has now ended up in court.
Last week, the brand won the opening battle because Eminem’s “Shady” and “Shady Limited” trademarks hadn’t been used in Australia across several merchandise categories during the relevant period.
The finding wasn’t that the name wasn’t confusingly similar. It was based on a technicality about non-use.
Of course, the Swim Shady founders were playing on the name Slim Shady; only a fool would think they weren’t. I can just imagine the guffaws and back-slapping when one of them first came up with it.
In April, company founders Jeremy Scott and Elizabeth Afrakoff described the court stoush as a David and Goliath battle.
“It may be seen as a David v Goliath situation, but we strongly believe in what we’ve built and that we’re on the right side of this. We now look forward to the outcome,” they said in a statement at the time.
Um, no. It’s not a battle between the little guy and the big guy; it’s a battle about taking something that wasn’t yours to begin with. And the battle should also be about morality. How on earth do they think they are on the right side?
What happened here isn’t an underdog beating a giant; it’s about building a brand around someone else’s identity. There’s a word for that, and it isn’t “David v Goliath”.
Scott said: “We got it approved through the normal processes. Then suddenly you have one of the world’s biggest international superstars slide into your inbox.”
Marshall Mathers didn’t wake up one morning, stumble across an Australian beach umbrella company and decide to fire off an email between breakfast, watching the Detroit Lions and heading to his recording studio.
His lawyers contacted them because that’s exactly what lawyers employed to protect billion-dollar brands do.
“’We created Swim Shady to solve a real problem — making sun protection simple, portable and effortless at the beach,” Scott said.
“We remain focused on continuing to grow the brand globally.”
This statement reads like it was lifted straight from PR for Dummies: proudly announcing plans to “grow the brand globally” with no apparent irony that Eminem has sold more than 220 million records worldwide under the name they are using.
It also shows Swim Shady is clearly no longer just a small beach umbrella company.
This is what irks me. Slim Shady wasn’t dreamed up in a marketing meeting on Sydney’s Northern Beaches.
It was forged through talent, resilience and years of rejection before becoming one of the most recognisable personas in popular culture. All while Marshall Mathers grew up in poverty and was raised by a single mother battling drug addiction.
And yes, Mathers is rich now. Yes, he can afford good lawyers. But being successful doesn’t disqualify you from protecting what made you successful. If anything, it’s exactly why he should defend it even harder, because plenty of people are watching this case as a green light.
Imagine “Grim Shady” opening as a funeral home. Or “Trim Shady” cutting hair down the road.
Each one would be leaning on the exact same pun, hoping to sneak through by finding a product category that Eminem never trademarked.
Trademark law was designed to stop companies from confusing consumers over brands and logos. It wasn’t designed to protect a cultural identity someone spent decades creating, although perhaps it should be.
But this is one skirmish, not the war.
Eminem’s legal team has until July 22 to appeal, and it is also challenging Swim Shady’s trademark applications in the US, UK and Japan.
So while the Sydney founders may be celebrating this round, the broader fight is far from over.
Remember Eminem’s infamous line about his mother, Debbie, in “Without Me”? I really hope one day he can say that about Swim Shady.
