Any comedian knows a pun can get you booed. But these days a pun can also get you sued.
Famed singer Chubby Checker is suing Hewlett Packard for using his name — which he has trademarked — on a mobile phone software application. The app for HP’s Palm device, called the Chubby Checker, purports to measure a man’s genitals based on his shoe size.
I don’t know about you, but I appreciate a clever pun. As my nine loyal readers know, puns are pillars of this column. But this particular play on words got Checker’s undies in a twist, and he sued in federal court.
HP pulled the app after receiving a letter from Checker demanding that the tech giant cease and desist using his name. But he charged forward with a lawsuit, even though a mere 88 copies sold, at 99 cents each, before the app was pulled. HP’s profit was $16.58. Shakespeare asked, “What’s in a name.” Chubby Checker replied, “about 17 bucks.”
That isn’t his real name, of course. He was born Ernest Evans and took the stage name Chubby Checker, before recording the chart-topper “The Twist,” as a takeoff on Fats Domino. When it comes to wordplay, apparently Checker feels what’s good for the goose is not good for the gander. At least, not when one uses his name to gander at guys’ goodies.
The case moved forward this month, when a judge refused HP’s motion to dismiss Checker’s trademark infringement claim. (The judge did dismiss some of his other claims.) Evans says HP has tarnished his name, violated his trademarks and knowingly invaded upon his publicity rights.
In denying HP’s motion to dismiss trademark claim, the judge wrote that the defendants should have “deduced that the owner of the Chubby Checker mark would never have consented to license the mark for such a vulgar purpose.”
But HP notes that the app was not developed by HP or Palm. The company says it can’t be held legally responsible for third parties that would make available such an item in its app store. While news of the case tends to evoke chuckles, the suit may set precedent in measuring the liability of app distributors. Apparently liability can’t be measured by shoe size.
HP’s recourse includes invoking the “innocent publisher defense,” based on a law designed to protect newspapers and magazines from trademark suits over paid advertising. HP is also looking for protection under a law used by digital publishers to shield themselves from liability over readers’ posted comments.
There are other issues facing the suit, including determining how damage was done by an app that sold fewer than 100 copies and generated less than $20 in profit. We’ll see whether, when it comes to trademark infringement suits, size matters.
I wish the singer had shown a sense of humor about the situation. He would’ve been a great celebrity pitchman for the Chubby Checker app. But I can’t blame him for taking action to protect his good – and valuable – name. You can never truly measure a man without walking in his shoes.
Whether you can measure other things by his shoes, cell phone users may never know.
0 comments:
Post a Comment