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Thursday
Aug012013

Ice Cream Porn: Ben & Jerry's Wins Judgment

Lloyd Bishop/NBC/NBCU Photo Bank(NEW YORK) -- Imitation may not always be the sincerest form of flattery -- at least not if you're Ben & Jerry's Homemade.

The ice cream maker this week won a consent judgment against Caballero Video, a maker of pornographic videos that had been giving its DVDs names inspired by names of Ben & Jerry's flavors.

Take, for example, the DVD Hairy Garcia, whose inspiration would seem to have come from Ben & Jerry's "Cherry Garcia."  Or Boston Cream Thigh, an homage, in its way, to "Boston Cream Pie."

Neither Ben nor Jerry was amused, and the Vermonters filed suit in September 2012, claiming, among other things, that their flavor-names and even the art and graphics of their ice cream containers had been infringed upon, tarnished and "diluted."

But Ben & Jerry's attorneys didn't stop there.  Their 32-page complaint contains a visual, side-by-side comparison -- on a practically microscopic level -- of a Ben & Jerry's container and a corresponding pornographic DVD.

The name on the Ben & Jerry's container says "Banana Split."  The name of the corresponding DVD differs by three letters and refers to a female body part.

Eight little arrows (provided as a visual aide by Ben & Jerry's lawyers) point out eight incriminating similarities between the two products.  They include, quoting the complaint, "large white puffy clouds," "grazing cow" and "bananas."

Where the ice cream container says up top, "Vermont's Finest," the DVD says, "Porno's Finest."

The similarities, said the complaint, were likely to cause confusion in the minds of consumers, who would mistakenly believe that the products were affiliated.  The result of that confusion would be to undermine and damage the ice cream's reputation.

New York District Court Judge Lewis A. Kaplan evidently agreed, and a consent judgment telling Caballero to cut it out was issued on Monday under his signature.

Any surviving copies of Peanut Butter D-Cups or Chocolate Fudge Babes are destined to be collectors' items, since Caballero agreed, under the terms of the judgment, to destroy its remaining inventory.

An email from ABC News requesting comment from Ben & Jerry's got no response.  A phone call to Caballero, however, did.  They said, "No comment."

Copyright 2013 ABC News Radio