Should Ben & Jerry's Take a Chill Pill?

[stickyvicky]

lol... i couldn't help but laugh out loud when I read this...
http://www.xbiz.com/news/153590
C'mon, I don't care who you are, that's funny! American Cream? Hairy Garcia? You gotta give it to them, that took a lot of nerve... that's all we need more lawsuits.... they should feel complimented... after all, you are no one until they've named a porn parody after you.... just teasing.... will be interesting to see how this one plays out....

[stickyvicky]

http://bottomline.nbcnews.com/_news/201 ... errys?lite
More on it..

Thing is, to harm Ben & Jerry's, they would have to show that the parody causes consumer confusion. I don't think anyone would be confused about ice cream or think that Ben & Jerry's was involved in making porn...

[carl goldfinger]

That's funny!

Don't they sell enough icecream anymore that they need so bad, to sue anyone else who uses a name sounding similar not even remotely? Haha I'm curious if they will win this lawsuit. I bet, they don't!

Carl

[Redd44]

I wonder how much money Ben & Cherry's, excuse me, Ben & Jerry's is willing to spend on this!

[WalterB]

Parody production has all ready been upheld in the courts as a viable expression of freedom of speech. Seems like B&J should get a grip.

The answer?

Yes

[Redd44]

I just realized that parodies don't stop with just porn movie names, but there are porn stars with "parody" names too like Hanna Montada. There's probably some others but i can't think of any.

Thank the Heavens for courts that uphold the rights of freedom of speech against such nonsense.

[dave45]

LOL I just thought of this. When are they going to start selling Ben and Jerry's next the the Ben and Cherry's? I don't think that would confuse the consumers, every one knows when they want ice cream.

[Gert-Jan]

Hmm, I'm kinda surprised that I seem to be the only one who thinks Ben & Jerry's have a case here.

Just read this small paragraph: (taken from the NBC News article)
Ben & Jerry's is suing the maker of "Ben & Cherry's" X-rated DVDs, saying the "hardcore pornographic" films have smeared the ice cream maker's reputation. The trademark lawsuit was filed Wednesday in federal court in New York City. It says the sale of hardcore and exploitive pornographic DVDs and related goods would tarnish Ben & Jerry's Homemade Inc.'s name by creating an association with pornography. The lawsuit by the Vermont-based company says the films would likely cause "confusion, mistake or deception" regarding the company's trademarks. It says some of the X-rated names are similar to its own. The names included "Boston Cream Thigh," "New York Fat & Chunky" and "Peanut Butter D-Cup."

One more: (By George Miaoulis, Professor of Marketing, Wright State University, Dayton OH)
"A trademark includes any word, name, symbol or device, or any combination thereof, adopted and used by a manufacturer or merchant, to identify his goods and distinguish them from those manufactured or sold by others".

Why do you all think B&J are overreacting? And what I'd like to know is, where do you draw a line between "freedom of speech", as most people here like to call it, and trademark infringement?

http://www.xbiz.com/news/153647 ... story continues on Sept 12th ... meanwhile, anybody want some icecream?

[WalterB]

I think they're overreacting because, 1) No one in straight society would even be aware of the porn parody. 2) it's a parody, which is allowed in every facet of society, 3) no one in porn is going to stop buying Ben and Jerrys because of this. More likely, they might even buy more. In fact, more people will most likely be made aware of this because of the lawsuit. If B&J's had kept their mouths shut, this would have gone away quietly. Now, they have made a whole new segment of society aware of it.

It's a joke! GJ, are you aware of all of the other porn parodies out there? There are many, mainly of TV shows and some movies. Saturday Night Live parodies programs and people constantly. That's what they do. If SNL did a B&J parody, no one would bat an eye. Therefore B&J (do they realise what their abbreviation could stand for?) is only upset at porn, not at someone doing a parody of their business. Not only do I think they are over reacting, I don't think they have a case.

Are you now dissuaded from buying B&J's? Of course not. Are you a little more inclined to go buy a pint of Chunky Monkey? I might be.

"Offensive images...." Offensive to who? Him?

[stickyvicky]

By the way, the lawsuit that was filed against "The 3 stooges XXX" or "not the 3 stooges" I don't remember what it was called, was completely dropped, dismissed.

[carl goldfinger]

Yes Gert-Jan,

What kind of level of similarity can be sued?
& what words & combinations are for common use?
There are too many ppl who are trying to make profit with it.
& the courts are overflooded with senseless cases.

I'm not your opinion. Why? Do you remember Coca-Cola? What about Pepsi-Cola? Forbidden or not? Not!
American Cream <=> American Dream?
Hairy Garcia <=> Cherry Garcia?
New York Super Fat and Chunky <=> New York Super Fudge Chunk.
etc, etc, etc...

Come on, Gert-Jan. This is nuts. Ben & Jerry's will lose the case. Let's make a bet.

What ice cream I want?

I'll take Carmen's juicy Pussy-Icecream (Hopefully she will sell it in future as well as her chocolate pussy)

Yours

Carl

Dammit! Walt again!!! Just one second in front of me !

[John_fromNY]

Oh so now Ben & Jerry's Ice Cream is suing Caballero Video on breach of their product names ... This is an interesting case. It does involve trademark infringement. Sorry Carl I have to go with Gert-Jan here. As he does know what he's talking about.

Two questions:

1. Does the Estate of Jerry Garcia become involved? As proceeds of "Cherry Garcia" sales as a certain percentage do make there way to the estate tax return of the late Mr. Garcia. They are considered a charitable contribution for Ben and Jerry's Ice Cream.

2. Now the big question is ... if this case makes it all the way to the U.S. Supreme Court... does Associate Justice Clarence Thomas disqualify himself? Since didn't he have his pubic hair on that Coca-Cola can that he gave to Anita Hill?



Inquiring minds want to know.

[Gert-Jan]

Let me first say that I also like the joke. The people behind this have done an excellent job creating a product and putting it on the market (well, they're trying to). However, when you cross a line, you know there's the possibility of getting sued.

• Saturday Night Live
• Three Stooges ~> Not The Three Stooges XXX
• Scary Movie, Meet The Spartans, Date Movie, Not Another Teen Movie
• Avengers ~> Avengers XXX
• Dr Jeckyll & Mr Hyde ~> Dr Pyckle & Mr Pryde
• Monty Python

Yes Walt, the list goes on and on. All parodies. Nothing wrong with that. In fact, it's pretty reasonable that in the case Vicky referred to, the lawsuit was dropped/dismissed. Parody: to make it more absurd than it was. Work created to mock, comment on, or poke fun at an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation. That exact definition basically covers the examples given above.

The case we're dealing with here is different. B&J's is an ice cream company, division of a British/Dutch ( ) conglomerate, that wants to maintain their reputation. On the other side we have Caballero Video, known for their long history in the adult industry. You can't ignore the fact it's imaginable the "Ben & Cherry"-line could harm that specific reputation of B&J's by linking it with porn. I agree that probably not many people in straight society are linking the two, but the question is not whether they are, it's whether they could be making the connection ...

So, do I think this is a parody? No. Do I think it's trademark infringement? Yes.

( Oh, and Carl, you still owe me $50, so no bet for now. )

[carl goldfinger]

$50? Did my Alzheimer's get me again? When & Where?
I didn't give a High5 to anyone, as far as I remember!

Carl

Gert_Jan wrote:
"I agree that probably not many people in straight society are linking the two, but the question is not whether they are, it's whether they could be making the connection ..."

I'm interested will the judge decide, is it a parody case or not or is it a grade of similarity case or not.
My opinion is still Ben&Jerry's will lose the case... anyway... just my 2 €ents

[WalterB]

the question is not whether they are, it's whether they could be making the connection

I think that you may be right, and that this may have been used before, GJ. But it reminds me of a joke I heard many years ago. (Careful, it's a groaner, )

The cops stopped a guy for speeding. In the process of giving the guy his ticket, the cop noticed tools in the guys back seat: a crowbar, a large screwdriver, wire cutters, construction tools. The cop saw them and asked the guy to step out and to stand in front of the patrol car while he looked thru the back seat.

Soon the cop came back and cuffed the guy. The guy asked, "What for? What did I do?" The cop said, "There have been recent reports of burglaries in the area and you are in possession of burglary tools. So I am arresting you on suspicion of burglary."

The guy was flabberghasted. "What? I work in construction. Those are construction tools. If that's the case, you may as well arrest me for rape, too!"

The cop said, "What? Are You guilty of rape, too?"

"No," replied the guy. "But I certainly have the tool for it."

You can't "suppose" what someone "might" think. A person can "suppose" anything. I used to ride a motorcycle, so you might as well arrest me for trafficking drugs - because some motorcylists have been knows to traffic in drugs, and that would cause some people to "suppose" that I did, too.

I fully understand what you are saying, GJ, and I worry that you may be right. But, to me, it's just like heresay evidence. You cannot use heresay evidence, simply because it's something you heard from someone else, not because it's something you have personal direct knowledge of.

[Gert-Jan]

I fully understand what you are saying, GJ, and I worry that you may be right. But, to me, it's just like heresay evidence. You cannot use heresay evidence, simply because it's something you heard from someone else, not because it's something you have personal direct knowledge of.

And that's where you have a good point, Walt. It brings us back to Vicky's second post in this thread. The attorney has to come up with some hard evidence that Cabellero's new line causes consumer confusion ...

And Carl, I was talking about the $50 bet last Friday, during Vicky's camshow ... but, nevermind!

We'll have to wait and see what the outcome will be.

[Torp]

if you have ever been to the ben & jerry's factory you can rest assured they take their trademark seriously. Since ben & jerry haven't owned it in while the owners; British-Dutch Unilever conglomerate are behind the actions.

typically these types of suits are settled outside of trial or all of a sudden some press release is sent out that takes the steam out of the suit.



well enough on this - I have to go get my schweddy balls out of the freezer.

[stickyvicky]

I've always wanted to go there! It's in Vermont right? What a great day out for my nieces and nephew next time I'm up north! I hear you get to sample as much ice cream as you want and they have bunny rabbits everwhere outside just running free around the place.... (not very porn like at all, lol... yeah I can see why they'd be pissed... )

[Torp]

yes waterbury VT. When you do go I can highly recommend the Von Trapp Lodge in Stowe. The Von Trapps are the same ones that were featured in the sound of music. It's easily a 5 star most of the time. I dunno about the bunnies as didn't see any as they'd make good stew. If you sign up for the tour (it's a little hokey) which one has to do while there. There is an intro ten minute movie then you get to view the operation in process and the various areas. You get to peak at the "new super products" section but not too closely. At the end you get a freebie of whatever was being made on the line (but not all u can eat as they are moving the next group thru). Ben & Jerry's Late Night for Jimmy Fallon was the flavor on that particular day.

Not to worry though as the picture is very reflective of the place. the blue awning section is where you can purchase to your heart's content. To the left, the green awning, is the main entrance and to the right the gift shop which oddly enough is where you exit into from the tour.

[stickyvicky]

That is a great idea! I'm planning a trip to go up north sometime in the next few months.... It's a beautiful area, so much to do up there.... my brother has a new baby, I've been planning on going up there for some time now and showering him with gifts... it's so fun to spoil other people's children.... Good thing it's not all you can eat, cause my mom and I would eat it all! Then they'd throw us out and say "That's all you can eat! Now get out!" lol...