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Chubby Checker's Lawsuit Over Penis-Measuring App Can Proceed

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By Brett Snider, Esq. on August 19, 2013 9:34 AM

Musician Chubby Checker is free to sue HP over a software app that not only bears his trademark but also estimates penis size.

"The Chubby Checker" is a pun-laden app that went on sale in 2006, promising to approximate -- in line with myth and legend around predicting peckeroo length -- "the size of a man's genitals based on his shoe size," reports Reuters.

But the same man who once asked sock-hoppers to "do the Twist" apparently doesn't want his stage name mixed up with the app, and he's going to great lengths in court to stop it.

App Has Big 'Shoes' to Fill

Chubby Checker, né Ernest Evans, filed suit against printer magnate Hewlett-Packard (HP) in February 2012, with worries that his name would forever be associated with the penis-measuring app.

Despite the artist's protests, the app never got much exposure; "The Chubby Checker" was only downloaded 84 times before it was taken down.

The former singer's worries aren't totally cockamamie; there is a lot of value in a trademark, especially one that has been built over several decades and provides a celebrity like Chubby Checker a link to his work.

Although the icon's non-trademark claims were dismissed, products that bear someone's name, like "The Chubby Checker," also may give rise to invasion of privacy claims for appropriation of name or likeness.

HP Knew It Shafted Checker

Federal Judge Williams Alsup is allowing Chubby Checker to proceed on his trademark infringement claims on the strength of the allegation that HP, which distributed (but didn't create) the app, "knew it violated the trademark," reports Reuters.

Like naming a new business, HP was responsible for checking the availability of its name with other registered trademarks to avoid confusion from consumers as well as trademark litigation.

By allegedly ignoring this basic step or simply by ignoring the consequences, HP arguably had constructive knowledge of its infringement and allowed any Tom, Dick, and Harry on the market to assume that its product was associated with the musician Chubby Checker.

Since the death of the "Chubby Checker" app, giggling teenagers have had to look elsewhere for a good genital-related guffaw. But the real Chubby Checker remains resolute in his quest to be compensated for having his trademark tossed in with other things guys use to measure their junk.

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