San Diego Trademark Attorney® Blog

Ben & Jerry's Sues Porn Producers For Ripping Off Trademarked Ice Cream Names

September 6, 2012

ice_cream.jpgSan Diego - Ben & Jerry's Homemade Inc. and parent company Unilever launched a lawsuit on Wednesday against the makers of Ben & Cherry's, a series of pornographic films, alleging they are infringing a number of trademarks, including those covering the names of several of the ice cream maker's most popular flavors.

The North Hollywood, California-based Rodax Distributors Inc., which does business as Caballero Video, and its two principals make, market, distribute and sell a series of DVDs containing "exploitative, hardcore" pornographic films, according to Ben & Jerry's' complaint filed in Manhattan federal court.

The Ben & Cherry's movies bear titles similar to iconic, well-known Ben & Jerry's flavors such as New York Super Fudge Chunk, Peanut Butter Cup and Everything But The ..., the complaint says. Ben & Cherry's has produced films entitled New York Super Fat & Chunky, Peanut Butter D-Cups and Everything But The ... Butt.

The movies also feature nearly identical simulations of Ben & Jerry's trademarked logos, the complaint says.

The DVDs are marketed in product packaging featuring simulations, confusingly similar variations or imitations of the Ben & Jerry's product packaging and trade dress, according to the complaint.

Ben & Jerry's says it has averaged nearly $500 million per year in sales for the past three years, which represents millions of gallons of ice cream.

"The extraordinary and longstanding success of plaintiffs' Ben & Jerry's brand products over the past 35 years has fostered wide renown and fame with the trade and public," the complaint says.

Despite being put on notice of Ben & Jerry's' rights in its famous and registered family of trademarks, the defendants willfully diluted and infringed the marks, and continue to do so, according to the complaint.

The use of the infringing materials is likely to cause confusion in the minds of consumers, who might mistakenly believe that the movies are affiliated with Ben & Jerry's, the ice cream maker says. The defendants' behavior is also likely to tarnish the ice cream brand's reputation and undermine or damage the brand's substantial goodwill and reputation, the complaint says.

Ben & Jerry's is not a complete stranger itself to lewd ice cream names, as the creator of the trademarked flavor Schweddy Balls.