COOKIES & MILF

Vermont’s finest ice cream purveyors, Ben & Jerry, scored a quick, preliminary legal victory this past week against porn producer Caballero Video.  A few excerpts from the Temporary Restraining Order issued by the U.S. District Court in Manhattan will convey the flavor of the dispute:

 Defendants are hereby restrained from using the designations BEN & CHERRY’S, HAIRY GARCIA, EVERYTHING BUT THE BUTT, LATE NIGHT SNATCH, AMERICONE CREAM, NEW YORK SUPER FAT & CHUNKY, BOSTON CREAM THIGH, COCONUT 7 LAY-HER BAR, CHOCOLATE FUDGE BABES, PEANUT BUTTER D-CUPS, BANANA CLIT or any  substantially similar designations . . .    

and . . . engaging in any conduct that tends falsely to represent that, or is likely to confuse, mislead or deceive purchasers, Defendants’ customers and/or members of the public to believe that, the actions of Defendants, the products sold by Defendants, or Defendants themselves are connected with Plaintiffs, are sponsored, approved or licensed by Plaintiffs, or are in some way affiliated with Plaintiffs.

Unfortunately, the Court has sealed all visual images, so it is not possible to see what Ben & Jerry’s alleges to infringe its logos.

It appears that this TRO was entered ex parte; that is to say, without the Defendants appearing to oppose it.  Such orders are permissible provided an opportunity to be heard is promptly provided after the fact, and the court has scheduled a Preliminary Injunction hearing for Wednesday, September 12th.  Here’s hoping that Caballero will appear with capable counsel and defend vigorously.  The small body of law on what constitutes permissible parody, and is therefore protected by the First Amendment, can always use more elucidation.  Does this fall on the permissible parody side of the line, like the San Diego Chicken’s use of a Barney look-alike in some of his routines, or on the infringing side, like “a poetic account of the O.J. Simpson double murder trial entitled The Cat NOT in the Hat! A Parody by Dr. Juice”?

UPDATE (9/13):  We’ll never know.  Caballero threw in the towel and agreed to a permanent injunction yesterday.

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