By Stewart Tongue
YNOT – A New York judge has temporarily enjoined the sale, distribution, advertisement or promotion of Caballero Video’s Ben & Cherry’s DVD line, saying the videos may infringe upon the intellectual property rights of ice cream company Ben & Jerry’s.
The 30-year-old ice cream brand, known for its hippie sensibilities and provocative flavor names, filed a federal lawsuit against Caballero Sept. 4, claiming the video line’s logo is confusingly similar to Ben & Jerry’s trademarked brand imagery. In addition, the ice cream manufacturer claimed, Caballero intentionally chose titles for the line in an attempt to harness the goodwill Ben & Jerry’s has generated with its fun-loving approach to product marketing. Among the titles to which Ben & Jerry’s objects are Hairy Garcia (after the B&J flavor called Cherry Garcia), New York Fat & Chunky (New York Super Fudge Chunk), Americone Cream (Americone Dream), Boston Cream Thigh (Boston Cream Pie) and Peanut Butter D-Cups (Peanut Butter Cup).
Ben & Jerry’s is not opposed to using sexual innuendo to sell products. The company has raised eyebrows with the introduction of flavors like Schweddy Balls and Karamel Sutra. Nevertheless, Vermont-based ice cream company and its attorneys feel Caballero’s use of similar names besmirches B&J’s reputation by associating the iconic brand with hardcore smut. Caballero’s use of similar iconography and names is likely to generate “confusion, mistake or deception,” according to court documents.
Ben & Jerry’s Homemade Inc. produces and sells ice cream and related dessert products at more than 300 Ben & Jerry’s Scoop Shops in the U.S. and another 150 shops internationally, as well as through supermarkets and other retailers.
The lawsuit, set for an initial hearing Sept. 12 in Manhattan, seeks unspecified damages.
