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Ben & Jerry's in X-Rated DVDs Violate Trademark

By Deanne Katz, Esq. on September 07, 2012 | Last updated on March 21, 2019

If you've ever wondered how far you should go to protect your trademark, look no further than Ben & Jerry's suit against the maker of a line of x-rated movies.

The films are part of a pornographic series called 'Ben & Cherry's' that uses titles reminiscent of some popular Ben & Jerry's flavors. The lawsuit says that the DVD names and the series title will be confusing to consumers who are looking for Ben & Jerry's ice cream. They're also claiming that the films will tarnish Ben & Jerry's reputation.

The names aren't the only problem listed in the suit, reports ABC. The video packaging also allegedly mimics Ben and Jerry's which makes their case stronger.

A trademark is an identifying name, logo, phrase, or design that customers associate with your brand or product. The purpose of registering your mark is to make sure competitors don't profit off your recognizable marketing.

The power of a trademark is only as good as its ability to identify your business specifically.

Any 'dilution' through other uses of the same or similar marks makes it harder for you to protect your trademark. To keep a trademark strong the owner must work to make it identifiable and stop others from using it.

Ben & Jerry's has worked hard to make a potentially weak trademark well-known and easily identified across the country.

To prove infringement, Ben & Jerry's must show that the line of x-rated movies uses names and designs similar enough to confuse or mislead consumers. A judge will look at the likelihood consumers will check out the Ben & Cherry's line of DVD's thinking that they've found something related to Ben & Jerry's ice cream.

Because of the nature of the videos, the ice cream makers may be successful in their claim that the x-rated movies are tarnishing their image as well.

If an infringer uses your mark in a way that is in opposition to how you portray your company, that may tarnish your reputation and give you grounds for recovery.

Once you discover potential infringement, take the issue to an attorney so you can figure out your next step.

Ben and Jerry's isn't completely G-rated given it's penchant for limited time flavors like 'Schweddy Balls' and perennial favorite 'Karamel Sutra.' But the nature of the x-rated movies is far beyond their normal limits which will be crucial to their trademark suit.

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