A&P v. D'Avella [1]

Two brothers from New Jersey, Mark and Matthew D'Avella, spent the summer working for the A&P supermarket in Califon, New Jersey. They made the best of what could have been a boring situation by creating parodic rap songs with supermarket themes under the name "Fresh Beets" (here's their myspace page [2]). Their songs including gems like "Always Low Prices" and (their masterpiece) "Produce Paradise," which is a nod to Coolio's 1995 "Gangsta's Paradise," which in turn drew on Stevie Wonder's venerable "Pastime Paradise." Mark and Matthew made a video of "Produce Paradise" in the A&P store (after hours) and posted it to YouTube [3] and their website, fakelaugh.com [4], along with some blog commentary.

A&P's parent company, The Great Atlantic and Pacific Tea Company, Inc., filed a lawsuit against the brothers in New Jersey Superior Court seeking $1 million in damages. The complaint [5], filed August 24, 2007, included counts for defamation, business and product disparagement, and federal trademark infringement and dilution. It alleged that "Produce Paradise" depicted the brothers "performing their rap song in various recognizable areas of the Califon A&P, including the fresh produce department, the corner bakery, the stock room and the employee bathroom," and that "at least one defendant is wearing a hat with a recognizable A&P logo [during the video]."

The complaint cited the brothers' "disparaging and disgusting lyrics pertaining to produce and groceries, and the store in general" and their "doing various disparaging and disgusting things to produce and groceries, and [sic] in and around the produce and grocery areas." None of the statements identified in the complaint, however, mention A&P. To support its claim that the video has injured its reputation, A&P alleged that "at least one customer," having recognized the store and Mark and Matthew as employees, complained to A&P about the video, stating that she was "disgusted and distressed by the scenes depicted in the video," and that she "would not be shopping in [A&P's] stores in the future owing to the repulsive acts depicted and performed by defendants in the Rap Video."

A&P also raised a trademark infringement and dilution claim, alleging (remarkably) that Mark and Matthew are "using the A&P logo in commerce, in connection with the promotion of their Rap Video" and that this use of its mark "is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association of defendants with A&P, such that a viewer of the Rap Video would surmise that A&P condoned, or sponsored or approved the use of the A&P Logo and/or the Califon A&P premises in the Rap Video." Somewhat (but only marginally) more realistically, the complaint claims that the defendants' use of the A&P logo dilutes the value of the mark.

Update: In May 2008, the Courier News reported [6] that the parties had settled. The precise terms of the settlement are confidential, but it looks like the brothers have removed the video from the Internet.