Frosty Treats, Inc., the modern-day pied piper, tempting children with, well, frosty treats from its ice cream trucks, sued Sony Computer Entertainment for trademark infringement based upon Sony’s use of the mark FROSTY TREATS on the side of an ice cream truck in its video game “Twisted Metal.” Frosty claimed that the use of the truck with a clown, coupled with the words FROSTY TREATS emblazoned on one of the trucks would chill its trademark rights and cause confusion among consumers as to whether Frosty sponsored, endorsed, or was affiliated with the game.
The 8th Circuit affirmed a lower court ruling that there was no infringement, because notwithstanding the long time use of the mark by Frosty, the term “frosty treats” was descriptive of frozen ice cream desserts and the mark FROSTY TREATS, as used by the ice cream company, was printed in smallish letters on the back and side of the trucks, so as to appear descriptive of the many ice cream decals plastered around the truck. Frosty’s survey, evidencing some consumer confusion related to seeing the labeled truck in the video game, was thrown out. As to the clown, the 8th Circuit overturned the trial court’s holding that it was functional (the clown directed children to safely cross the street) was overturned, but held nonetheless that no triable issue of fact existed. We believe it’s game over for Frosty’s.