As for this week, in honor of Halo 3, there will be no post this week either (i.e., I expect to be too busy playing Halo 3 to be able to post this week....)
We'll be back to our regularly scheduled programming next week.
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.
Method of Playing a BINGO Game with Progressive Jackpot
Issued on January 9, 1996 to Gary Weingardt and assigned to Gary Weingardt Trust.
In case you were bored with the original game, or thought that BINGO was a game for your grandparents… This patent attempts to create a more challenging BINGO game than the traditional by adding two columns and two rows to the BINGO card and adding an additional 72 numbered balls. The new and improved game would be called BINGOES. The new and improved BINGO card could be used to play the traditional BINGO game or BINGOES. The card could be marked with different colors in order to play the traditional BINGO game. i.e. the five rows by five columns may have a white background, where the remaining two columns and two rows would have a red background to play BINGOES. In BINGOES, a winning combination could be a straight line of seven numbers in a row either vertically, horizontally or diagonally. Additional payouts could be made for the four corners, the eight spots around the center free space, the outside rectangle, or an intermediate rectangle. The operator can designate payouts based on the degree of difficulty of obtaining the winning combination. In addition, a user could play the traditional game of BINGO while simultaneously playing BINGOES, increasing the odds of winning. Claims appear limited to a variation that includes a progressive jackpot in addition to usual game jackpot.
The method of playing a game of bingo comprising:
a) providing a player with a bingo card consistent essentially of:
a. a plurality of numbered spaces formed as a matrix having seven rows and seven columns;
b. a first indicium designating a portion of the matrix comprising five contiguous rows and five contiguous columns whereby a five-by-five bingo game can be played thereon; and
c. a second indicium designating a portion of the matrix comprising two contiguous rows and two contiguous columns whereby, when combined with the first indicium, a seven-by-seven bingo game can be played thereon;
b) providing a plurality of bingo balls each having individual numbers corresponding to the numbered spaces on the bingo card;
c) a player making a first wager to be eligible for the five-by-five bingo game and a second wager to be eligible for the seven-by-seven bingo game;
d) randomly selecting consecutive bingo balls;
e) awarding a first preselected amount when the player achieves a predetermined winning combination on the five-by-five matrix of the bingo card;
f) awarding a second preselected amount when the player achieves a predetermined winning combination on the seven-by-seven matrix of the bingo card;
g) a player making a third wager to be eligible for a progressive jackpot pool;
h) designating a portion of the third wager to a separate progressive jackpot pool;
i) establishing a predetermined combination as a winning combination for the progressive jackpot pool; and
j) awarding the progressive jackpot pool to the player when he achieves the predetermined winning combination on the bingo card.