Chubby Checker can sue HP over genital-measuring app, judge says

SAN FRANCISCO Fri Aug 16, 2013 1:00pm EDT

SAN FRANCISCO Aug 16 (Reuters) - The musician famous for the Twist dance style can sue Hewlett Packard Co over allegations that the tech company used his trademarked name "Chubby Checker" on a software app that purports to measure a man's genitals.

In a ruling on Thursday, U.S. District Judge William Alsup in San Francisco ruled that Ernest Evans - known professionally as Chubby Checker - can move forward with trademark infringement claims against HP and its Palm unit.

HP spokesman Michael Thacker on Friday said the app was not created by HP or Palm. "It was removed in September 2012 and is no longer on any Palm or HP hosted website," Thacker said.

Chubby Checker first gained fame in 1960 when his recording "The Twist" rose to No. 1 on Billboard Magazine's hot singles chart, where it remained for 18 straight weeks, according to the lawsuit. It inspired an international dance craze in the early 1960s and has been a mainstay at dance parties ever since.

HP began offering "The Chubby Checker" app for sale in 2006, which purports to estimate the size of a man's genitals based on his shoe size, according to the ruling. "The name 'Chubby Checker' is thus used as a vulgar pun," Alsup wrote.

The musician informed HP that the app violated his trademark, and he sued earlier this year.

In an effort to dismiss the lawsuit, HP claimed that Evans failed to allege HP knew of the infringement. Alsup rejected that argument, saying Evans properly alleged that HP had a detailed application and approval process for the app, and thus knew it violated the trademark.

Alsup did dismiss other claims brought by Evans, but gave him a chance to refile the lawsuit to try to move forward on them.

The case in U.S. District Court, Northern District of California is Ernest Evans et al. vs. Hewlett-Packard Company et al., 13-2477.

A couple walks along the rough surf during sunset at Oahu's North Shore, December 26, 2013. REUTERS/Kevin Lamarque

Find your dream retirement town

Florida? Hawaii? Reuters has teamed up with Zillow to give you the power to customize a list of your best places to retire.  Video | Full Article