COMMENTARY | According to the Associated Press , famous ice cream makers Ben & Jerry’s are suing the creators of a line of “hardcore pornographic” films, stating that the movies are hurting their reputation. I think they’ve got a good case against the porn series, offered by defendants Rodax Distributors and Caballero Video, which is called “Ben & Cherry’s.”
The trademark lawsuit was filed in U.S. District Court in Manhattan on Wednesday. The suit alleges that Ben & Cherry’s movies play off the names of some of the ice cream maker’s well-known flavors, with titles that include “Boston Cream Thigh” and “New York Fat & Chunky.” The porn makers even used some of the ice cream company’s familiar brand features on the packaging of its X-rated films. Ben & Jerry’s is stating that the films will cause confusion, mistake or deception. While that wording seems a bit odd, it is actually directly from federal trademark law , which states in article 2 that no trademark will be registrable if it consists of a mark that resembles another registered in the Patent and Trademark Office which is “likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive.” According to the law, the court will determine whether more than one person is entitled to use the same or similar marks.
While porn makers stealing the ideas and intellectual property of ice cream companies probably wasn’t what was in the minds of those who founded this country’s trademark laws, the laws were put in place to prevent the stealing of intellectual property. The very name “Ben & Cherry’s” is the first warning that some stealing may be taking place. If the titles are as described, as are the elements of Ben & Jerry’s brand packaging, you have three strikes against the movies and a likely win for ice cream.
