Ben & Jerry's Wins Court Order To Prohibit Distribution Of 'Ben & Cherry's' Porn DVDs

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BEN AND JERRYS BEN AND CHERRYS PORNOGRAPHY
Caballero Home Video


By Jonathan Stempel

NEW YORK, Sept 6 (Reuters) - Ben & Jerry's Homemade Inc on Thursday won a court order temporarily blocking a producer of pornographic DVDs from selling and advertising titles with names similar to those of the company and its ice cream flavors.

U.S. District Judge Lewis Kaplan in Manhattan ordered Caballero Video to stop selling 10 DVD titles in its "Ben & Cherry's" series and to remove references to the products from the Internet.

Kaplan issued his temporary restraining order one day after Ben & Jerry's sued Caballero, accusing the North Hollywood, California-based company of trademark infringement.

Ben & Jerry's sued over the sales of such titles as "Boston Cream Thighs," "Chocolate Fudge Babes" and "Peanut Butter D-Cups," which it said were rip-offs of its Boston Cream Pie, Chocolate Fudge Brownie and Peanut Butter Cup flavors.

In addition, the complaint said the DVDs' packaging mimics Ben & Jerry's packaging, including such images as puffy white clouds and grazing cows, while also featuring images reflecting the DVDs' content.

Kaplan directed Caballero to appear in court on Sept. 12 to explain why he should not enter a preliminary injunction that would require the company to recall infringing products.

It was not immediately clear whether Caballero has hired a lawyer for its defense. A woman who answered the phone at its office said the company had no immediate comment.

Ben & Jerry's is based in South Burlington, Vermont, and said it has sold about 45.6 million gallons of its namesake ice cream in the last three years. It is a unit of London-based Unilever Plc.

Defendants in the case include Rodax Distributors Inc, which does business as Caballero, according to the complaint.

Late Thursday, Kaplan ordered that potentially offensive images included in the original complaint be removed from the public record, but be available on file under seal with the court.

The case is Ben & Jerry's Homemade Inc et al v. Rodax Distributors Inc et al, U.S. District Court, Southern District of New York, No. 12-06734.

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