Gay, Hotties, Intellectual Property, Jews, Reader Polls, Trademarks

Oy Vey! Dueling Calendars Of Jewish Hotties Trigger Trademark Throwdown

Two of my favorites: Jesse Eisenberg and Andy Samberg.

Earlier in the week, I came across an interesting intellectual-property fact pattern in the New York Post. The Post reported on a calendar conflict in which the creator of the Nice Jewish Guys Calendar, an established brand, alleges trademark infringement by a newcomer, the Naughty Jewish Boys Calendar.

I must now confess to a weakness for the Chosen People. I admire them not just for their socioeconomic and educational attainment but for their sex appeal. So I was more than happy to investigate.

Let’s check out the competing calendars, the cease-and-desist letter, and the response thereto — along with some Hebraic hotties, of course….

The word is already out about hot Jewish women like Natalie Portman and Scarlett Johansson; it’s the men who need greater exposure.

The New York Post is diversifying nicely beyond gossip, sex, and scandal (a strategy we can appreciate here at Above the Law). In addition to book reviews, the Post now offers coverage of IP disputes:

A battle to define male Jewish sexuality is playing out on two competing wall calendars — one filled with mensch after mensch, another that’s decidedly less kosher — and now, the battle’s gone legal.

In 2011, a television producer named Adam Cohen founded the “Nice Jewish Guys” wall calendar, featuring pictures of smiling, fully clothed young Jewish men that any Jewish mother would be proud to call mishpacha (family). The calendar is now annual, and growing in popularity. The 2014 edition has sold more than 10,000 copies, and Cohen even secured a cross-promotional deal with the popular Jewish dating site JDate.

But not everyone is onboard with Cohen’s version of how nice Jewish men should be — or how they should be portrayed. When Astoria playwright Duncan Pflaster placed a Craigslist ad in February for models for a “Naughty Jewish Boys” calendar, he called it an alternative to the “emasculating ‘Nice Jewish Boys’ [sic] calendar currently out,” claiming that his would “show the sexy side of Judaism.”

Pflaster soon received a letter from a lawyer representing the other calendar — actually called “Nice Jewish Guys” — claiming that “Naughty Jewish Boys” was close enough to their trademark to confuse consumers and requesting that Pflaster stop using the name.

You can read the cease-and-desist letter — sent by Michael L. Lovitz on behalf of Jumbo Jet Inc., owner of the “Nice Jewish Guys” trademark — over here. This is the core of its kvetshing:

Our client is understandably concerned. The Infringing Name [of “Naughty Jewish Boys”] being used for your wall calendars is highly related to our client’s registered trademark [in “Nice Jewish Guys”]. The common interplay of the terms “naughty” and “nice” makes it likely that consumers and potential customers would believe, in error, that the Infringing Name is being used in connection with products that are related to, affiliated with or under license from JJI, a belief that is reinforced by your continued reference to and comparisons with JJI’s Calendars. The products you are promoting under the Infringing Name are a natural expansion for JJI of its line of wall calendars, and therefore the use of the Infringing Name in connection with your calendar products would interfere with JJI’s prospective business opportunities, to JJI’s detriment.

You can read the response of Duncan Pflaster — creator of the “Naughty Jewish Boys” calendar, and a fan of naughty Jewish boys himself — over here. His response, which he accurately describes on his website as “polite,” is sadly not snarky (unlike such classics as the C&D responses sent to West Orange, the American Bankers Association, and Starbucks). It seems that Pflaster is taking the situation seriously.

What’s the gist of his defense? He articulated it when he spoke with the Post:

“I don’t think there’s any way our calendars can be confused,” he says. “I’ve tried to make that clear on the Web site and on all of the materials.”

The calendars take a very different approach to Jewish men.

Indeed. This side-by-side comparison prepared by the Post shows the divergence (click to enlarge):

This image captures the contrast in approach. The “Nice Jewish Guys” calendar features mensches you can “take home to Mom.” The “Naughty Jewish Boys” calendar boasts shirtless (and presumably brised) men you can take straight to bed.

I’m not an IP lawyer, but I’m hoping that Pflaster and his “Naughty Jewish Boys” calendar prevail. I really want to get my hands on that calendar (which you can pre-order through this website).

For those of you who are IP lawyers or who take an interest in these issues, who is in the right in this mishegas? Read the full Post article, the C&D letter, and the response, then comment on this post and vote in our reader poll.

UPDATE (3/21/2014, 9:15 a.m.): Check out this excellent analysis (by Foley Hoag’s David Kluft) of parody as a defense in trademark law, which may be relevant to the calendar controversy.

Does the owner of Nice Jewish Guys have a valid trademark infringement claim against Naughty Jewish Boys?

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Sexy Jewish pinup calendars in ‘naughty vs nice’ holy war [New York Post]
Naughty Jewish Boys™ Calendar [official website]
Nice Jewish Guys™ Calendar [official website]

Earlier: 8 Superior Cultural Groups, According To 2 Yale Law Professors

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