'Chubby Checker' lawsuit filed against HP over endowment size estimator
Attorney Willie Gary of Stuart, Florida, has filed a federal lawsuit in the United States District Court, Florida's Southern District, against HP and Palm on behalf of performer Ernest Evans over the Silicon Valley firms' hosting of an app titled "The Chubby Checker" hosted in the webOS App Catalog. The app, a play on the stage name of Mr. Evans - Chubby Checker, was created by developer Magic Apps, was designed as a calculator for estimating the penis size of a man given the input of his shoe size.
The app was downloaded 84 times before being removed from the App Catalog in September of 2012 and no longer available in the store on device or in the App Catalog web listings. "Chubby Checker" is held as a trademark by the Ernest Evans Corporation. The lawsuit claims that HP and Palm's "use of the name 'Chubby Checker' in its app is likely to associate platiff's marks with the obscene, sexual connotation and images," and that Evans has "received no compensation for the unauthorized use of the Chubby Checker name and trademark".
Additionally, the lawyers allege that customers that have looked at or purchases The Chubby Checker app "are being misled into believing that the plaintiffs have endorsed the defendant's app." Up to its removal, The Chubby Checker had clocked fewer than 100 downloads. The lawsuit is demanding that HP and Palm cease sales of the app bearing the trademark of or similarity to Chubby Checker and triple damages of the profits HP derived from sales of the app. When listed, The Chubby Checker retailed for $0.99; with sales of no more than a hundred copies and the 30% cut taken by Palm and HP from the App Catalog, damages could total upwards of $90.00.
Apart from the $90.00 in profit damages, the lawsuit seeks additional damages to the tune of half a billion dollars for irreperable damage done to the Chubby Checker name.
For their part, when contacted regarding this lawsuit, HP provided us with this statement: "The application was removed in September 2012 and is no longer on any Palm or HP hosted web site."
Aaaaaand… that's enough straight-faced talk about this. Are you kidding me? Seriously, is this a joke? I understand the desire and right to defend one's trademark against infringement. The brand of Chubby Checker is no doubt a valuable one, what with the iconic 1960's dance and all, but of all the things to file a lawsuit over.
HP's merely the host of the app - and isn't anymore, with The Chubby Checker having been removed from the App Catalog over four months ago. The legal fees alone for this lawsuit will far outweigh any potential damages (legally allowed to by tripled), assuming the case isn't settled (unlikely) or thrown out all together (likely). If HP's made a whopping $30 off sales of The Chubby Checker, then developer Magic Apps has clocked a whopping $70. That's a potential damages award of $210! Totally worth another lawsuit, wouldn't you say?
And now for the most absurd part of this whole thing: it's a penis size app with a clever name. Aside from my being assured that there is no scientific evidence to support the shoe size to penis size correlation (You know what they say about guys with big feet? Big shoes.), it's a silly app that is getting infinitely more coverage now that it's no longer available and the subject of an ill-targeted lawsuit than it ever did when in the App Catalog.
Okay, really the most absurd part is the demand for half a billion dollars in damages. With all due respect to Mr. Evans, Chubby Checker will never be a brand worth five hundred million dollars. Seeking that much in the way of damages for an app that nobody had heard of until this ludicrous lawsuit was filed is, for lack of a better term, just plain silly.
Said Gary in a statement a prepared 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."
I'll tell you what just isn't right: this ridiculous puffed up lawsuit. And maybe something with Mr. Gary, though we're not going to comment on his shoe size.