South Philadelphia-bred rock-n-roll pioneer Chubby Checker is in a twist – and he’s not performing a rendition of the dance he popularized in the 1960s.
Checker, also known as Ernest Evans, has filed a $500 million trademark infringement lawsuit against Hewlett Packard and Palm, Inc. over a smartphone app previously offered through Palm’s app catalog. Titled the “Chubby Checker,” the program claims to calculate a man’s penis prowess based on their shoe size through a “foot to chubby converter.”
“This lawsuit is about preserving the integrity and legacy of a man who has spent years working hard at his musical craft and has earned the position of one of the greatest musical entertainers of all time,” Evans’ attorney Willie Gary said in a statement.
“We cannot sit idly and watch as technology giants or anyone else exploits the name or likeness of an innocent person with the goal of making millions of dollars. The defendants have marketed Chubby Checkers’ name on their product to gain a profit and this just isn’t right.”
‘Obscene sexual connotation’
A complaint filed in federal court last week states the Earnest Evans Corporation registered Chubby Checker in 1997 as a trademark for musical sound recordings and performances and Evans’ company The Last Twist, Inc. has trademarked the stage name to market food products including “jerky, hot dogs, steaks, lamb chops, pork chops, veal chops, hamburgers, chicken, popped or processed popcorn, candy, chocolate and spring water.”
But apparently “adult entertainment” does not fall under that umbrella. An archived description of the “Chubby Checker” app reads:
“Any of you ladies out there just start seeing someone new and wondering what the size of there [sic] member is. Well now you can right now from your phone. All you need to do is find out the man’s shoe size and plug it in and don’t worry where your [sic] from because The Chubby Checker supports shoe measurements of different regions and types. Now with The Chubby Checker there is no need for disappointment or surprise…”
The complaint says the app’s title title “is likely to associate plaintiffs’ marks with the obscene sexual connotation and images evoked by defendants’ app ‘The Chubby Checker'” and that its use “causes the purchasing public and the trade to think that defendants’ goods are in some way sponsored, connected, owned or otherwise associated with the plaintiffs.” It claims that association “will diminish and destroy the positive associations the public has of the Chubby Checker name.”
The suit alleges that Evans’ law firm sent Hewlett Packard a cease and desist letter in early September, but that the infringement continues. Though the “Chubby Checker” appears on several websites listing apps for sale, it appears to be currently unavailable for download.
Evans is asking for $500 million in damages due to “the tarnishment and blurring of the distinctive quality” of the Chubby Checker brand, as well as “irreparable injury,” including lost revenue from items currently being sold under the now-allegedly-tarnished Chubby Checker name, as well as future earning losses.
He’s further seeking to recoup profits now-defunct developer Magic Apps made by using his name and damages in “the amount that the Chubby Checker name was deemed to have been worth to the defendants.”
The complaint asks the court that Palm and Hewlett Packard be made to destroy all devices, including computer hardware and software, files, servers and advertising materials, that bear the “Chubby Checker” name and to delete reference to the app from all online directories, including internet search engines.