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from www.jdsupra.com – Last week, Ben & Jerry’s Homemade Ice Cream brought a trademark action in the Southern District of New York to put a stop to its naughty doppelganger, “Ben & Cherry’s XXX Ice Cream.”

Distributed by Caballero Video, Ben & Cherry’s is a series of pornographic films with ice cream-themed titles such as “Boston Cream Thigh,” “Hairy Garcia” and “New York Super Fat and Chunky.”

On Wednesday, the Southern District of New York will hear arguments from Caballero as to why a preliminary injunction should not issue against its continued distribution of the series.

The Court has already granted a temporary restraining order against Caballero. So is the outcome here a foregone conclusion? Or will Caballero join the ranks of Larry Flynt, the Mitchell Brothers and other porn-producing First Amendment anti-heroes? Barring settlement, the outcome will likely depend on whether Caballero’s videos are considered legitimate trademark parodies or just bad puns.

Trademark parodies are hardly virgin territory for the porn industry, but they were not always recognized as a legitimate form of First Amendment expression.

For example, in the 1979 case of Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F. 2d 200 (2d Cir. 1979), the Dallas Cowboys Cheerleaders sued the distributors of the adult film classic Debbie Does Dallas for trademark infringement of the cheerleaders’ well-known costumes and dilution under New York State law.

The distributor argued that the film was a parody protected by First Amendment principles, and that there was no confusion because no reasonable person would believe that the actual Dallas Cowboys Cheerleaders were associated with the film. The Second Circuit rejected these arguments out of hand and held that:

Indeed, it is hard to believe that anyone who had seen defendants’ sexually depraved film could ever thereafter disassociate it from plaintiff’s cheerleaders.

But times change, and circuits sometimes disagree. In LL Bean Inc. v. Drake Publishers, Inc., 811 F. 2d 26 (1st Cir. 1987), the First Circuit refused to follow the Debbie Does Dallas opinion and instead held without hesitation that High Society magazine’s parody of the L.L. Bean catalogue, entitled “L.L. Beam ‘s Back-To-School-Sex-Catalog,” was protected First Amendment expression.

Today, parody remains a common law defense to trademark infringement and a statutory defense to trademark dilution. Whether a work is protected parody will often depend on the likelihood of confusion analysis. Put another way, it’s not infringement if the consumer is in on the joke.

For example, in Burnett v. Twentieth Century Fox Film Corp., 491 F. Supp. 2d 962 (C.D. Cal. 2007) sued Twentieth Century Fox over her depiction as a cleaning lady in a porn shop in an episode of the Family Guy. The Central District Court of California agreed with Burnett that the depiction was offensive, but held that the offensive nature of the episode was precisely why it was protected parody. The court stated: “The more distasteful and bizarre the parody, the less likely the public is to mistakenly think that the trademark owner has sponsored or approved it.”

But none of this is to say that Ben & Cherry’s is automatically protected. In order to be a parody, a work must not simply use a mark to call attention to itself, but must use it in order to comment on, criticize or ridicule the mark itself or its owner.

Otherwise, it is not a parody. For example, in Dr. Seuss Ent., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997) the Ninth Circuit held that a book about the OJ Simpson trial, which mimicked the style and cover of the Cat in the Hat, was not a protected parody. Dr. Seuss was not the target of the book — OJ Simpson was. The book was simply using a pun about the Dr. Seuss mark to call attention to itself.

So Caballero Video’s fate may turn on whether the Ben & Cherry’s series is a protected parody about Ben & Jerry’s Homemade Ice Cream or simply a bad pun. Do these films actually comment, criticize, or in some way ridicule the ice cream company? I hope there’s a popcorn maker in the judges’ lobby, because the only way to tell will be to watch every single one of them.

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