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Frosty Treats Inc. v. Sony Computer Entertainment America Inc. 426 F.3d 1001 (8th Cir. 2005)

I scream, You scream, We all scream for Ice Cream!

Sony was sued over its use of an ice cream truck and clown character in its Twisted Metal video game series. Sony has 6 games in the series, but only the last one, “Small Brawl” depicts an ice cream truck with a label of “Frosty Treats” on the side. Frosty Treats alleged that their mark “Frosty Treats” was protectable under trademark law and consumers would think Frosty Treats was affiliated with the games.

Frosty Treats sells frozen deserts out of ice cream trucks. Their vans have a 9” X 4” decal on the rear of the truck with “Frosty Treats” in pink capital letters. The trucks also have a clown pointing his finger saying “watch cars-cross at rear” so children will cross at the rear of the truck.

Twisted Metal depicts a devious clown driving an ice cream truck (named Sweet Tooth or Needles Kane), a purple-nosed, black-eyed clown on the side of a remote control truck and a clown head on the antenna of the remote control truck. The court held that the clown in Twisted Metal had “virtually no resemblance to Safety Clown.” Even Frosty Treat’s CEO admitted there was no resemblance. He stated at his deposition, “They don’t look the same way, but . . . if the Safety Clown had a brother who was nasty and mean, it would look somewhat like Sweet Tooth.”

The Court of Appeals affirmed the decision of the district court holding that the mark “Frosty Treats” was not protectable, the clown graphic was not likely to cause consumer confusion, and Frosty Treat’s mark or trade dress was not being diluted. The court found “Frosty Treats”, which had never been registered was at the most, a descriptive mark without a secondary meaning, and not protectable as a trademark. While Frosty Treats conducted a survey to prove secondary meaning, they were unsuccessful. The court found Sony’s survey of 204 children and 200 adults who couldn’t remember the names of any ice cream trucks more convincing.

The court noted that the use of a clown on ice cream trucks is not novel. Many ice cream trucks have clown designs. Even though the ice cream truck in Small Brawl depicted Frosty Treats on the ice cream truck, the court held that “no reasonable juror” could find that the trade dress of Frosty Treats and the depictions in Twisted Metal were not similar, nor was Sony trying to pass off the Frosty Treat’s mark as its own.

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