Video Game Law Blog

August 03, 2005

Sony recently won round two in its battle with Frosty Treats Inc.

Frosty Treats is one of the largest ice cream vendors in the US.  Its trucks are covered with pictures of the various products available for sale.  The trucks are also labelled with the words "Frosty Treats" and a picture of a clown's face.

Sony's "Twisted Metal" games contain ice cream trucks labelled with the words 'Frosty Treats"? and with a clown graphic. Frosty Treats Inc. sued Sony for trade-mark infringement and dilution and for unfair competition.  (Maybe Frosty Treats isn't big on ice cream truck carnage.) 

In any case, the lower court granted summary judgment in favour of Sony, and the US Court of Appeals agreed. The courts ruled that the words "Frosty Treats" could not be protected because they were generic or descriptive. And the courts ruled that the Sony's clown graphic wasn't confusing with Frosty Treats' clown graphic. 

Although Sony won this case, video game developers and publishers should still be careful when using words and logos in their games.  The courts could have come to a different conclusion in this case if the clown logos were more similar or if Frosty Treats had been more diligent in creating and protecting "Frosty Treats".

A copy is available here

Frosty Treats, Inc. v. Sony Computer Entm't Am., Inc.
July 25, 2005, US Ct. of Appeal, 8th Circ.
[2005] U.S. App. LEXIS 15127 .