May 23, 2000
10:07 AM   Subscribe

Yet Another Domain Name Dispute Develops (YADNDD): gets a Cease & Desist from One is a windows software site, the other a fan site about a cartoon character. Is there any cause for confusion on the part of users wanting to visit either site (actually, one would have to misspell "monkey" in order to get to the windows site)? Should the site owner have taken down his/her site? Who is going to protect domain owners from future things like this happening?
posted by mathowie (21 comments total)
Another question: Does anybody know of a Dumb Domain Dispute (D3) that ever went to trial? I can't think of one off the top of my head.
posted by ratbastard at 10:15 AM on May 23, 2000

How wierd....until I saw the latter site, I had assumed it was Ben & Jerry's going after them.

Wouldn't it be ironic if Ben & Jerrys slapped ChunkyMonkey with a C&D (whom I assume *has* a valid claim of Trademark dilution).

"X" blocks the "O" for the game Matt!
posted by EricBrooksDotCom at 10:20 AM on May 23, 2000

Eric - I thought the exact same thing, I didn't even know there was a cartoon character called chunky monkey. Apparently the chunky monkey folks have a registered trademark, so maybe they can after Ben & Jerry's too?
posted by mathowie at 10:22 AM on May 23, 2000

*Off Topic* Yo Ratbastard, good to see you back, and congratz on the new new house!
posted by EricBrooksDotCom at 10:23 AM on May 23, 2000

My guess is these jokers paid a lawyer $75 to just write a C&D. (Lawyers'll write anything you want)

I dunno Matt... Chunky Monkey has been my *FaVoRiTe* flavor for years... I could have sworn they stated it was a registered trademark on their container.

Dammit, now I gotta run to the store and buy a container to be sure....bye bye diet!

posted by EricBrooksDotCom at 10:29 AM on May 23, 2000

"I have been informed by Linda Bonvie that she is being unduly harassed by email."

Gee, is she shocked?

I wonder if she read about all the trademark-infringement lawsuits and said "Hey, these are software people, they'll have money!"

Cynical? Perhaps, but cripes, the two pages are strikingly different, they aren't even related. What the hell is the point?
posted by cCranium at 11:04 AM on May 23, 2000

Man, that's one flustered post. Futuility and pointless wheel-spinning always hits my ability to construct pointed arguments.
posted by cCranium at 11:36 AM on May 23, 2000

I Want someone to sue me for having registered (even though it isn't being used). That'll at least give me something to do with the site.

(although I guess they wouldn't be able to C&D me...)
posted by cCranium at 12:19 PM on May 23, 2000

I have a friend who just registered for his friend, Catherine Chow. Any guesses how long it will be before Purina sends a C&D?
posted by dogwelder at 12:48 PM on May 23, 2000

Wow. She may as well go knock on the Purina legal dept's door and say "Hi, could I just get my letter now? Thanks..."

posted by cCranium at 12:52 PM on May 23, 2000

Hmmm. I worked on, and last I checked it was still owned by PURINA.
posted by ericost at 1:39 PM on May 23, 2000

Oops- make that
posted by dogwelder at 2:01 PM on May 23, 2000

in related news, i just received a c&d yesterday from idealab! for my registration of my favorite claim in their letter: "If any of idealab!'s customers, potential clients or curious web surfers wish to visit a website operated by idealab!, they would likely type in 'idealab' or variation of the word 'idealab'." how great is that?

too bad for them that i'd planned to call it "The Bad Idea Lab", and not a single word (and mixed case, and no stupid exclamation mark).

anybody have any thoughts on the odds of them actually suing me? i think i'll hold onto this one for a while...
posted by mmanning at 2:10 PM on May 23, 2000

oh, and btw, the only case they list in their c&d is "Cardservice Intern, Inc. v. McGee, 950 F. Supp 737, 741 (E.D. VA 1997" (whatever that all means). idealab!'s synopsis:
Where plaintiff, a credit card and debit card processing service, alleged infringement of its "Cardservice" mark by competitors use of "", a domain name, the court held that the plaintiff's mark was likely to be confused by competitors use of "" and granted permanent injunction and attorneys fees.
i'll probably scan in and post the actual c&d letter tonight for everyone's enjoyment.
posted by mmanning at 2:24 PM on May 23, 2000

Dammit! She really does own the trademark:
Goods and Services IC 025. US 022 039. G & S: Clothing, namely, shirts. FIRST USE: 19830708. FIRST USE IN COMMERCE: 19830708
Mark Drawing Code (1) TYPED DRAWING
Serial Number 75811883
Filing Date September 30, 1999
Owner (APPLICANT) Comanor, Pauline INDIVIDUAL (Address withheld. cause I'm such a nice guy!)
I still say she paid a laywer to draft a C&D and is praying to God this doesn't come to a court case...

I just wrote a very polite letter to their webmaster asking for a more civil resolution (like reciprocal links?).

But, so help me God...if they get "Chunky Monkey" pulled off the shelves, I'm gonna go PoStaL!!!!!!
posted by EricBrooksDotCom at 2:33 PM on May 23, 2000

She's not going after Ben & Jerry for the trademark, is she? B&J probably talked to her and got (and paid for!) the rights to use the name. Who's going to be hurt if someone wants to pay you to name their ICE CREAM after your character? That's a good deal!

On the other hand, some little software company that doesn't show anything like the cartoon character using it. Well, that's a big deal.

Now, there IS a branding issue here, unfortunately. I mean, "chunkymunky" admitedly isn't much different than "Chunky Monkey", especially phoenetically, but when it comes down to it, the two companys aren't doing anything similar, and aren't in competition, so there's no reason for trademark stomping.

And it may very well be just defending the mark, which people have to do, as has been stated countless times in this and other fora.

I'm rooting for, just because I think this entire ordeal is a waste of everyone's time.
posted by cCranium at 2:45 PM on May 23, 2000

... and as I pack up for the day to begin the trek home, I can only guess that the real winner in this issue, especially if it becomes at all publicised in the mainstream (which is won't :-), is going to be Ben & Jerry. I know they're getting 5 bucks from me tonight.

posted by cCranium at 2:49 PM on May 23, 2000

I don't know that Ben and Jerry's is using the name "Chunky Monkey" with permission, but I would be surprised if they weren't. Lots of their great flavors are named after people/bands/etc. Like Wavy Gravy, Phish Food, and Cherry Garcia.
posted by daveadams at 8:26 AM on May 24, 2000

Time Out. Ben and Jerry's sells ice cream. It's perfectly legal to have similar trademarks in different areas of commerce, for instance, Domino's Pizza and Domino sugar (they're even both food!). That is why trademarks are always for a specific class of goods and services.

The USPTO repeats three registrants for the phrase "Chunky Monkey":

* one Pauline Comanor, for plush animal toys, since 1973;
* one Ben & Jerry's, Inc., for ice cream, since 1988;
* one Pauline Comanor, for shirts, since 1983.

If she intended to sue Ben & Jerry's she should have done it a long time ago. She would have to prove marketplace confusion, though. On the other hand, B&J would definitely get in trouble for producing a Chunky Monkey(tm) plush toy or t-shirt.

Remember, Apple Corps (Beatles) didn't sue Apple Computers until Macs could do MIDI ... i.e. play music, and encroach on Apple Corps' sphere of commerce.

The problem with the internet, of course, is that not only is there no geographic separation (only one, not First National of Smithton and First National of Jonesville), merely running a website is deemed to be an act of commerce and thus similar.
posted by dhartung at 9:44 AM on May 24, 2000

posted by dhartung at 9:46 AM on May 24, 2000

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