"Frosty Treats" Denied Trademark Protection

Case Name: Frosty Treats, Inc. v. Sony Computer Entertainment America, Inc. , Case No. 04-2502 (8th Cir., July 25, 2005)

One-Sentence Summary: The mark "Frosty Treats" is not protectible under trademark law because there was insufficient basis for concluding the phrase had acquired a secondary meaning.


8th Circuit Findings:

• Affirmed summary judgment against Plaintiff who had not registered its marks and could not meet burden of establishing the marks are protectible under trademark law.
• The stylized words "Frosty Treats" in pink capital letters with frost on the upper portion of each letter appearing in a decal approximately 9 x 4 inches on the side of Plaintiff's ice cream vans was, at best, descriptive. "Frosty Treats" conveys the immediate idea that frozen desserts are being sold.
• Plaintiff failed to put foward more than a scintilla of evidence that "Frosty Treats" identifies Plaintiffs' goods and distinguishes them from others. According to Plaintiff's survey, only 1% of respondents shown images of the Frosty Treats ice cream van mentioned Frosty Treats by name. Significantly, the "Frosty Treats" mark is not prominently displayed on its ice cream vans - the primary way it advertises the phrase.
• The district court erred in holding that Plaintiff's graphic of a colorful clown which directs children to "watch for cars" was functional and could not qualify for trademark protection. However, the use of a clown on ice cream trucks was hardly novel and the trade dress of Plaintiff's vans resembles that of a generic ice cream truck and therefore lacks distinctiveness within the marketplace.
• Affirmed the district court's holding that Plaintiff failed to present sufficient evidence with regard to likelihood of confusion between the trade dress of its vans or its clown and any depictions of vans or clowns in Defendant's video games. In particular, the Court noted that a survey asking whether an image reminded participants of something else failed to address the relevant inquiry into whether consumers are confused as to the existence of sponsorship or association between the Plaintiff and the video games.