Frosty Treats v. Sony Computer Entertainment America, Inc.

Frosty Treats, Inc., and its affiliated companies (collectively, Frost Treats) (plaintiffs) operated ice-cream vans with logos and wording written on the exterior. The company name, “Frosty Treats,” appeared near the rear of the vans in pink capital letters with frosting on the upper portion of each letter. The vans also displayed a safety clown in two locations. The safety clown was a clown image surrounded by text that directed customers to cross at the rear of the vehicle to minimize potential traffic accidents. Sony Computer Entertainment America, Inc. (Sony) (defendant) released the Twisted Metal video-game series, which included an ice-cream truck that bore a clown image and the words “Frosty Treats.” Frosty Treats sued Sony for trademark infringement and dilution, arguing that Sony’s ice-cream-truck design created a likelihood of confusion as to Frosty Treats’ affiliation with the games. Sony filed for summary judgment, and the district court granted the motion. The court found that the Frosty Treats mark was unprotectible as generic or descriptive without a secondary meaning. Evidence at trial showed that when surveyed, consumers could not identify Frosty Treats as an ice-cream truck vendor and did not recognize the logo. When shown photos of the Frosty Treats truck, consumers were able to identify only that the truck sold ice cream. The court also found that the safety-clown graphic was functional in nature and not protectable under trademark law. Frosty Treats appealed to the Eighth Circuit.