The Chicago Personal Injury Law Blog

Ben and Cherry's: Porn Satire Backfires, Injunction Issued

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We have to give them a shout-out for the creativity. There is a time-honored tradition of porn title parodies, such as the epic "Pirates" knockoff of "Pirates of the Caribbean" and the "Done in 60 Seconds" mock of "Gone in 60 Seconds." (Okay, we just made that last one up, but it's good, right?)

Caballero Video took that concept to a whole new level with its "Ben and Cherry's" series, reports Reuters. The series is, of course, a tribute to Ben and Jerry's Ice Cream. "Boston Cream Pie" became "Boston Cream Thighs," "Cherry Garcia" became "Hairy Garcia," and we just became nauseous.

Mr. Ben and Mr. Jerry were not honored by the tribute. Instead, they filed suit to block the sale of the DVDs, arguing trademark infringement.

Ben and Jerry's won the first round, according to Reuters. A federal court granted a temporary injunction ordering Caballero to stop selling the DVDs and remove references to the videos from the Internet.

We're just not sure if Ben and Jerry's will win the war, however. In trademark infringement cases, one has to show that the alleged infringement would cause confusion for the consumer. It is doubtful that a consumer could attempt to purchase ice cream and end up with chubby-chaser porn. This really does seem like a clear cut case of parody.

In parody cases, "a parody must convey two simultaneous -- and contradictory -- messages: that it is the original, but also that it is not the original and is instead a parody." In other words, it must clearly reference the original while also communicating that it is a parody. Clearly, "Hairy Garcia" is not a flavor of ice cream. It is simply a clever reference to an original product that is clearly not related to the original.

Still not convinced? Take the case of Spam and Spa'am. The former is a meat-product. The latter is a Muppets character meant to satirize the tame luncheon meat. The Muppets won because the satirical product was clearly advertised as a Muppet and not a meat product.

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