Ben and Jerry’s Ice Cream has always been a company with a sense of humor. As Ben & Jerry’s spokesman Sean Greenwood says, “We just do fun.” With flavors like “Chubby Hubby,” “Cherry Garcia,” “Phish Food,” and “Imagine Whirled Peace,” who could disagree? At times, the company has even been accused of having a little too much fun. Some of its racier-named flavors include “Karamel Sutra,” and, of course, the controversial “Schweddy Balls.” The latter flavor was inspired by an Alec Baldwin SNL skit and opposed by groups like One Million Moms, which said, “[t]he vulgar new flavor has turned something as innocent as ice cream into something repulsive.”
Perhaps attracted to the scent of something innocent and pure being defiled, a North Hollywood pornographer called “Caballero Video,” recently released some stomach-churning titles under the moniker, “Ben & Cherry’s.” The pornographer’s lascivious exploits include: Harry Garcia (Cherry Garcia); Boston Cream Thigh (Boston Cream Pie); Chocolate Fudge Babes (Chocolate Fudge Brownie); New York Super Fat & Chunky (New York Super Fudge Chunk); and Peanut Butter D-Cups (Peanut Butter Cup). The complete list of saucy titles (including those too racy for even this blog to reprint) is available in this court order. And of course, pictures of the films’ bawdy packaging that couples the traditional pastoral Ben & Jerry’s theme with NSFW pictures are available for those who “have learned to work the Google on the Internet machine.” (Note: That link points to the IMDB page for Blades of Glory, not pornography. What kind of blog do you think this is?)
Now, Ben & Jerry’s has filed suit in New York federal court against Caballero Video, alleging federal trademark dilution, federal trade dress dilution, federal trademark infringement, federal trade dress infringement, federal unfair competition, common law unfair competition, dilution and injury to business reputation, and deceptive trade practices. The Court has already issued a temporary restraining order, ordering Caballero Video to stop offering the 10 allegedly infringing titles, remove all online mention of the X-rated films, and stop using the trademarked Ben & Jerry’s packaging — at least until a final decision is rendered in the case.
But did the Court err in issuing the temporary restraining order?