Showing posts with label parody. Show all posts
Showing posts with label parody. Show all posts

Friday, September 7, 2012

Ben and Jerry's Sues Porn Company Over Adult Film Titles


Vermont-based Ben & Jerry's Ice Cream, a subsidiary of Unilever, is known for its creative flavors with names such as “Schweddy Balls” and “Karamel Sutra.”

The ice cream company was not amused, however, when an adult entertainment company used the name “Ben & Cherry’s” to sell X-rated DVDs that intentionally mimicked the ice cream maker’s titles and distinctive trade dress.

Ben & Jerry’s filed a trademark/trade dress infringement and dilution complaint in U.S. District Court for the Southern District of New York against the maker of adult entertainment titles such as “Boston Cream Thighs,” “Peanut Butter D-Cups” and “Chocolate Fudge Babes.”  The District Court has entered a Preliminary Injunction against the Defendant’s further use of the brand names.

Adult entertainment companies have faced similar trademark and trade dress litigation before, and enjoyed only mixed results when asserting the parody/free speech defense in response to the Plaintiff's assertion that the parodies are too close, and are likely to confuse consumers and dilute their famous brands.

For example, in the late 1970's, the Dallas Cowboy's Cheerleaders sued various distributors of "Debbie Does Dallas."

In the Dallas Cowboys v. Pussycat Cinema, an adult theater in New York City that was showing the films was enjoined by the District Court.

The Dallas Cowboys Cheerleaders successfully argued that their famous uniforms were copied by the film's producers and used in advertising without their permission in a manner that was likely to cause confusion and dilution.  The ruling was affirmed by the Second Circuit Court of Appeals.

However, in 2001, George Lucas sued the producers of a Star Wars parody titled Starballz.  The District Court in California held that "the Star Wars films are so famous that it is extremely unlikely that consumers would believe that Starballz is associated with Star Wars or Lucasfilm."

The mixed rulings have only emboldened the adult film industry to press its luck in recent years, making such sophisticated "parodies" even with celebrity lookalikes, as depicted below:



Friday, August 10, 2012

The North Face Kicks Butt...Face

The North Face has asked a federal judge to hold the owners of "The South Butt" in contempt of court.

The North Face had sued James "Jimmy" Winkelmann and the South Butt LLC in 2009, alleging trademark infringement from the use of "THE SOUTH BUTT."  The defendants claimed it was merely a parody, but the Defendants consented to a Permanent Injunction in 2010 barring them from using any of the South Butt marks.

The North Face now claims that only two days later, the now-enjoined Defendants formed a new company called Why Climb Mountains LLC, and came out with a new clothing line -- THE BUTT FACE.

North Face Apparel cites a consumer survey that it conducted, showing that more than 1 out of 3 people perceive the North Face as being associated with the Butt Face mark.

North Face Apparel is seeking sanctions including damages and attorneys' fees.

The case raises several interesting legal issues.  First, when a defendant consents to be permanently enjoined after having been sued, he is under a legal duty to steer clearer of potential infringement than he otherwise would have in the first place.

Therefore, had the South Butt came out with "THE BUTT FACE" initially, it may or may not have been found liable (although given the results of the survey, they probably would have been sued anyway).  But the point is that Court Orders have to have meaning or else, where is the finality to litigation?

Further, the parody defense that could have potentially prevailed in the first case, becomes a tougher sell to the Court the second time around, as the defendant's conduct demonstrates its potential for treating the litigation process as a joke, and disrespecting the Court's authority.

Wednesday, July 18, 2012

Off-Broadway Show Accused of Infringing Three's Company Copyrights

Public Domain / Wikimedia Commons
Playwright David Adjmi's off-Broadway play “3C” has been accused of being nothing more than blatant copyright infringement by DLT Entertainment, the company that owns the copyright to the popular 1970's television series.

According to a report in the New York Times, Adjmi received a detailed cease-and-desist letter from DLT Entertainment's lawyers, accusing him of copyright infringement, and listing numerous points of similarity between the play and the sitcom.  A stage adaptation of "Three's Company" is apparently in the works and DLT alleges that Adjmi's play was damaging to it.

According to the New York Times, Donald Taffner Jr., president of DLT Entertainment, said the company was “very protective of the overall brand” because the show continued to earn substantial revenues from syndication on TV Land and on home video.

3C used a scenario similar to that of "Three's Company," but explored darker implications of American culture in that period.  The now-closed production ran June 6-July 14 at the Rattlestick Playwrights Theater.

A representative for the Dramatists Guild was quoted in Playbill.com as saying: "the right of authors to make fair comment on pre-existing work (whether through parody or other forms of fair use) is a First Amendment safety valve in the copyright law, and one we wholeheartedly support, as do the courts. If the author contacts us, we will discuss the issue with him and see how we can help."

Adjmi's plight apparently caught the attention of those within the New York theater community, who cited the actions of DLT Entertainment as bullying (a common thread), stating that they believe that Adjmi's play clearly fell under the umbrella of parody — which is protected by the First Amendment.

Other playwrights have explored similar territory, including Bert V. Royal's Dog Sees God, which centers on the teen years of the Peanuts gang.

Tony Award-nominated playwright Jon Robin Baitz penned an open letter explaining why it was important that members of the New York theater community rally behind Adjmi's work and First Amendment rights, calling 3C "clearly and patently and unremittingly parody."

Playbill notes that Rattlestick's marketing materials never drew any direct links to 3C and "Three's Company," describing the play as being "inspired by 1970's sitcoms, 1950's existentialist comedy, Chekhov, and disco anthems," adding that it was a "terrifying yet amusing look at a culture that likes to amuse itself, even as it teeters on the brink of ruin."

"I am not a lawyer, but David may need one, and I am currently investigating the willingness of a respected First Amendment firm to take this case on pro-bono," Baitz stated in his open letter.

"That an Off-Broadway playwright should be bullied by a Wall Street law firm over a long-gone TV show, is, in and of itself, worthy of parody, but in fact, this should be taken seriously enough to merit raising our voices in support of Adjmi and his play, which Kenyon & Kenyon is insisting be placed in a drawer and never published or performed again.  Whether one appreciates the work or not is immaterial; the principle at stake here is a basic one. Specious and spurious legal bullying of artists should be vigorously opposed, and that opposition must begin first and foremost with all of us in the New York Theatre community."

Among the notable individuals to add their names in support were Stephen SondheimTony Kushner, Andre BishopJoe MantelloTerrence McNallyKenneth LonerganJohn GuareTerry Kinney, Stephen Adley Guirgis and John Patrick Shanley.