Poor Ben & Jerry Must Have Had A Rough Adolescence If They Think Ice Cream Can Be Confused With Porn

from the we-couldn't-make-this-stuff-up dept

I don't know about all of you, but thanks to Techdirt, one of the first things I think of when porn is brought up is trademark law. Okay, so that isn't even remotely true, but I have written about the convergence of those topics before. Back then, it was porn studio Vivid complaining that HTC calling one of their phones "The Vivid" was a trademark violation. They apparently thought the phone came with an app that (joke deleted due to extremely poor taste of the author).

But trademark complaints can flow in the opposite direction as well. Reader Will writes in about how Ben & Jerry's, the ice cream producer, is suing Rodax Distributors and Cabellero Video for trademark violations surrounding their DVD "Ben & Cherry's".

The trademark lawsuit in U.S. District Court in Manhattan said the sale of hardcore and exploitive pornographic DVDs and related goods is tarnishing Ben & Jerry's Homemade Inc.'s name by creating an association with pornography. It said the claims arise from the distribution and sale of a series of DVDs containing "exploitative, hardcore pornographic films" featuring titles and themes based on "well-known and iconic" Ben & Jerry's ice cream flavors as well as packaging that contains key company features such as a grazing cow, green grass and large white puffy clouds.

Yes, a cow eating its natural food below clouds is a key company feature. Even granting that, this is exactly how parody works. If you're making fun of something, which is what the pornographic movie purports to do (I haven't seen the video in question, only the cover, but I promise to do as much hands on research as possible), you're going to create a similar look and feel to whatever you're mocking. Porn has relied on parody protection in the past. I can understand why this might make Ben & Jerry's (BJs, if you like...) uncomfortable, but that doesn't make it actionable. Certainly it would be difficult to allege brand confusion, since no one in their right mind is going to think an ice cream company is going to dive into porn.

Even their complaints about the "names" of some of the film's stars should be covered by parody.

It identified some of the X-rated names similar to its own as "Boston Cream Thigh," "New York Fat & Chunky" and "Peanut Butter D-Cup." Ben & Jerry's has ice cream flavors titled: "Boston Cream Pie," "New York Super Fudge Chunk" and "Peanut Butter Cup."

Again, parody. And those names aren't even all that risque. In fact, I'd say they're about on par with names like "Schweddy Balls" and "Caramel Sutra", which are actual Ben & Jerry's flavors. Now, as of the time of this writing, a judge has issued a temporary restraining order (pdf) against the porn producers pending an appearance on September 12th to hear their side of things. In the meantime, I'll be awaiting the court's decision at home, while trying to determine whether the Chubby Hubby in my freezer is a tasty treat or a sex toy.

Filed Under: ice cream, parody, porn, trademark
Companies: ben & jerry's, cabellero video, rodax distributors