Please Keep Your Porn Away From My Ben and Jerry's Ice Cream

Ben & Jerry's has long been known for its playful ice cream flavor names. Names like Cherry Garcia, Phish Food and Late Night Snack all pay homage to pop culture (Jerry Garcia, the band Phish, and Jimmy Fallon, respectively). They've even had some racy names like Karamel Sutra, and who can forget Schweddy Balls?

But, when the tables were turned on Ben & Jerry's, they didn't like it one bit.

Porn and Pop Culture

Porn often takes its film titles from pop culture, and in true porn fashion, producer Caballero Video/Rodax Distributors Inc. ("Rodax"), found inspiration in Ben & Jerry's Ice Cream. Creating the "Ben & Cherry's" series, Rodax borrowed heavily from Ben & Jerry's. Films entitled "Ben & Cherry," "Boston Cream Thighs" and "Peanut Butter D-Cups" played off of popular ice cream flavor names. From the tag line "Porno's Finest" (swiped from Vermont's Finest), to the imagery on the packaging and advertising (grazing cows and puffy clouds), Reuters reports, the similarity was just too much for Ben & Jerry's.

Ben & Jerry's Sues

The Los Angeles Times reports that back in September of last year, Ben & Jerry's sued Rodax for trademark infringement. Just a week after the claim was filed, the U.S. District Court for the Southern District of New York ordered Rodax to stop selling the "Ben & Cherry" series while the case was pending.

Ben & Jerry's stated that they did not give permission to Rodax to use the Ben & Jerry's likeness, reports the Los Angeles Times. Presumably after months of negotiation, Ben & Jerry's and Rodax have come to an agreement. According to the settlement agreement, Rodax will not sell the Ben & Cherry's film series, and the agreement also applies to all marketing and packaging materials. Reuters reports that shortly afterward, the district court judge approved the consent judgment.

The Settlement

We're glad the parties have agreed, but we like to know how Rodax's parody defense would have held up. We're guessing that because the cost of litigation would out-number the amount of income it would make from "Ben & Cherry's" sales, Rodax decided to settle. Ben & Jerry's action definitely is a great reminder to other companies to defend their trademarks. But one has to wonder if Rodax has "won" since they just got an amazing amount of free (main stream) publicity.

The Take Away

Not sure what the take away is here. Hmm, how about this: Don't mess with ice cream. Or, um, separation of porn and ice cream is as fundamental as the separation of church and state? Or maybe just advise your clients not to infringe on trademarks. That's a start.

Related Resources:

• 'Porn Pirate' Lawsuits a Lucrative Niche for Porn Copyright Attorney (FindLaw's Technologist Blog)
• Notorious Porn, Copyright, Patent Trolls Down But Not Out (FindLaw's Technologist Blog)
• Unilever Sues Over Hardcore Ben & Jerry's Trademark Violations (FindLaw's In House Blog)