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Ben & Jerry's Sues Porn Makers for Bad Taste

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By Deanne Katz, Esq. on September 07, 2012 6:52 AM

Ben & Jerry's isn't interested in partnering with porn makers so they've filed suit against Rodax Distributors and Caballero Video for trademark infringement.

The culprits? "Boston Cream Thigh," "Peanut Butter D-Cup," and the whole Ben & Cherry's line of x-rated videos.

The ice cream makers weren't too amused by the video titles or the packaging display that they claim infringes on their easy-to-identify ice cream labels. But just because it is similar doesn't mean it's infringement.

Copying someone's intellectual property is often infringement but not if it's an attempt to parody that person or their brand.

The key to whether an act is infringement is whether it's intended to confuse or mislead customers. Copying that is obviously not related to the owner's brand is more likely to be a lawful parody than a potential infringement.

The chances that people see these DVDs and think they're linked to Ben & Jerry's ice cream? We'll let you think about that one.

Meanwhile Ben & Jerry's is also suing about the damage the video line will do to their reputation. They don't want their family-friendly ice cream to be associated with pornography.

Not that the ice cream brand has a squeaky clean image. They did make a splash with limited time flavor "Schweddy Balls" although it probably wasn't as offensive as the x-rated movies.

This isn't the first time a pornography company has parodied a mainstream and family-oriented product. There have been adult films based on kid-oriented entertainment like "Captain American" and Disney's "Pirates of the Caribbean," reports NECN.

The difference here may be that those works were copyright as pieces of art while Ben & Jerry's is a trademark. Copyrights last for a set period of time and survive even if there is infringement. Trademarks last only as long as they uniquely identify a brand or product.

Infringement on a trademark weakens it and a weak trademark isn't always enforceable.

Ben & Jerry's trademark claim is likely necessary to protect their brand, especially since the name "Ben & Jerry's" isn't a very strong trademark on its own. The name itself isn't unique; it's the way it's been marketed that makes people remember it.

Ben & Jerry's is suing to stop the porn company from making and distributing the DVDs, reports NECN. So long as the suit doesn't impact the sale of their ice cream, we're not too worried about how this one turns out.

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