Wednesday, January 18, 2006

Ben & Jerry's Ice Cream

Ben & Jerry's Ice Cream Greeting Cards ... from Florida State University. Photomicrographs (photos taken through a microscope) of popular Ben & Jerry's ice cream flavors, available as greeting cards. FSU apparently licenses the production of various decorative/promotional goods from its photos to Amber Lotus. Available bookmarks, for example, include PowerPC 620 and Cherry Garcia.

Pretty, but possibly infringing? Though Chocolate Chip Cookie Dough is generic, the line of greeting cards is called "Ben & Jerry's Ice Cream," and Chunky Monkey and Wavy Gravy are arbitrary/fanciful. Under the microscope, Wavy Gravy is no more psychedelic than the other flavors.

Nominative fair use?

When I was in law school -- but clearly on my way to becoming an IP prof -- I wrote Ben & Jerry's asking about the trademark aspects of the name change from Coffee Heath Bar Crunch to Coffee Toffee Crunch and back. This was before they'd been bought out; I got an answer, which was that, though they had used Heath Bars to make Coffee Toffee Crunch (and thus its presence in the Flavor Graveyard is a mite misleading), they decided to pay to use the trademark because taste tests showed that people liked the ice cream more when it was called Coffee Heath Bar, a result whose physiological basis has now been suggested by Read Montague's brain-imaging studies of Coke v. Pepsi preferences: people like Coke more in non-blind taste tests but Pepsi more in blind taste tests; the name "Coke" triggers positive memory associations.

Under Champion Spark Plug and the nominative fair use cases, did Ben & Jerry's really need to pay to use the name if they were using real Heath Bars?

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