This was a case back from 2004/05. To understand the case a little background must be given on both companies. Here we go. Frosty Treats, Inc. is the name of one of the largest ice cream truck street vendors in the United States. Their trucks feature a Frosty Treats logo and a Safety Clown, which is an image of a clown pointing children towards the back of the vehicle. In the mid 90's, Sony released a video game titled Twisted Metal 2 that allows players to wreak havoc on streets with a variety of vehicles. One of these vehicles included an ice cream truck prominently featuring a logo that say Frosty Treats. The ice cream truck in the game was also driven by a crazed clown named Sweet Tooth.
As you can imagine a lawsuit was filed by Frosty Treats, Inc. against Sony contending that the game infringed on the company's trademarks through the use of the phrase "Frosty Treats" as well as similarities between the video game clown and the company's own safety clown. The U.S. District Court for the Western District of Missouri dismissed the case, holding that the name could not be protected because it was generic. U.S. District Judge Scott Wright stated that "the various depictions of the Sweet Tooth character in Sony's Twisted Metal games and Frosty Treats Safety Clown are so dissimilar that no reasonable trier of fact could conclude that they are confusingly similar." Frosty Treats, Inc. then appealed the dismissal to the Eighth Circuit Court of Appeals who only affirmed the dismissal made before.
This case reminds me of the sample test question we were given in class on Thursday with Green Bean Cola, saying that the term could possibly not be trademarked because it is descriptive of the product.
Read more about this case here.
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