Grocery giant A&P may have shot itself in the foot by slapping a $1 million lawsuit on two former part-timers who shot a rap video about fruit and vegetables in one of its stores.

The video, “Produce Paradise,” features brothers Mark and Matthew D’Avella appearing to lick and urinate on produce and standing with bananas sticking out of their pants. “Now stick with your gut, take some advice, it ain't safe in our produce paradise,” they rhyme.

The D'Avellas posted the video Aug. 6 on their website and YouTube and, according to A&P, the company received a customer complaint about it within a week. The customer recognized the Califon, N.J., store as the location, A&P says, and “understandably, was disgusted and distressed by the scenes in the video.”

A&P fired the brothers Aug. 23 for violating various company policies. The following day, the D'Avellas got a real shock as A&P filed its suit that seeks $1 million in damages for defamation and product disparagement and the removal of the video from the Internet.

“The Rap Video ... contains numerous false and defamatory depictions of the treatment of produce by A&P employees,” the complaint says.

The alleged acts of pissing on parsley and other produce abuse were unlikely to endear the D'Avellas to their employer. But that is hardly enough to justify suing the brothers, who also allegedly infringed on trademarks by “using the A&P logo in commerce” and “in a manner designed to confuse consumers.”

In spite of A&P's claim that “Produce Paradise” has exposed it to “real, substantial and irreparable harm,” there’s absolutely nothing in the video that the casual viewer could grasp to make a tangible connection to an A&P store. The D'Avellas say they used another grocery chain's produce and advertising handouts to make the video.

“The only thing that has the company logo in the entire video is my hat, which is seen blurry for roughly 20 seconds,” one of the brothers says on their FakeLaugh.com site.

The video, moreover, was conceived as a college class project and spoofs Coolio's “Gangsta's Paradise.” Noncommercial works and parodies are generally protected from trademark claims under the fair use doctrine.

The Citizen Media Law Project believes the suit is so frivolous that the D'Avellas should request sanctions under a New Jersey rule of court that applies to a court document filed “for any improper purpose, such as to harass.”

But A&P seems to be doing a pretty good job of punishing itself. By the D’Avellas’ reckoning, viewership of their masterpiece has climbed from 150 before they were sued to a current total of more than 40,000 and more than 1,500 people have complained to the company about the suit.

“If they're going to lose sales, they're going to lose sales because they're making too big of a deal of a video two kids put on YouTube,” Mark D'Avella, a student at the University of Delaware, told the Courier News of Bridgewater, N.J.

As for the customer “disgusted” by the video, the brothers have identified her as the daughter of the Califon store's part-time bookkeeper.

By Matt Reynolds
9/30/07