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HP tries to have Chubby Checker app case dismissed

By Chris Cooke | Published on Friday 16 August 2013

Hewlett-Packard has asked that a lawsuit being pursued against it by American singer and ‘The Twist’ man Chubby Checker, over an app available in its app store, be dismissed.

As previously reported, Checker sued HP over an app it distributed called ‘The Chubby Checker’, which claimed to help users work out the size of a man’s penis using the always reliable shoe-size comparison method. Checker, real name Ernest Evans, said the punny app violated his trademarks and publicity rights, and sued HP for distributing it.

In a case that’s interesting beyond the dick-pun around which it is based, Checker’s lawsuit will test whether the operator of an app store can be held liable for trademark infringements committed by third-party app developers, either directly or as a contributory infringer.

Evans’ legal team say HP should be held liable because, like the operators of the bigger app stores, it vets each app before making them available via its proprietary platform. That vetting process should include checks regards trademark violation, the Evans lawsuit says.

But HP is citing various American legal principles, including the so called “innocent publisher defence” and safe harbours in the Communications Decency Act to say that as the distributor rather than maker of The Chubby Checker, it can’t be sued under trademark or publicity rights law.

HP also note that, while the offending app wasn’t free – as originally thought – only 88 copies of the digital tool were sold at a price of 99 cents before the technology firm was made aware of the trademark claim and removed it from its app store. HP’s cut from those sales would be less than $20.

It remains to be seen if judges allow this case to proceed properly to court.