A federal judge has ruled that Chubby Checker can move forward with his lawsuit to sue Hewlett-Packard (HP) over trademark violations regarding his iconic name.
Earlier this year, Checker—whose real name is Ernest Evans—sued HP and its subsidiary, Palm, over an app that purported to measure a man’s penis based on his shoe size. HP allowed “The Chubby Checker” on its HP App Catalogue in October 2006. It was not removed until September 2012, and it was apparently only downloaded (at the low price of 99 cents) fewer than 100 times.
“The complaint alleges that the app catalog maintained by defendants advertised the lascivious nature of the app and that defendants ‘maintained primary control over the use of the name and mark ‘The Chubby Checker’ in connection with... the offending app,’” Judge William Alsup wrote (PDF) in his six-page order on Thursday.
“The complaint further alleges that defendants employed a detailed application and approval process for the app. Construed favorably to the plaintiffs, these allegations are sufficient to permit an inference that defendants knew, or could have reasonably deduced, that the owner of the Chubby Checker mark would never have consented to license the mark for such a vulgar purpose.”
HP had moved to dismiss the case on two grounds, and while the judge upheld Mr. Checker's right to sue on trademark allegations, he granted the defendants’ motion to dismiss on the other, noting that:
There are no comparable allegations that defendants created or developed the app at issue (or any other app). The allegations only show that defendants’ HP App Catalogue is an interactive computer service provider. It therefore enjoys the broad immunity provided under Section 230 of the [Communications Decency Act] from all state claims relating to publishing content created by third parties.
The judge also set a jury trial date for October 6, 2014 at 7:30am in Courtroom 8, 19th Floor, San Francisco.
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