Frosty Treats, Inc. v. Sony Computer Entertainment America, Inc.
, 426 F.3d 1001
2005), is a trademark
case in which the U.S. Court of Appeals for the Eighth Circuit
held that the name of one of the largest ice cream truck
franchise companies in the United States
was neither distinctive nor famous enough to receive protection against being used in a violent video game.
Frosty Treats, Inc. is the name of "one of the largest ice cream truck street vendors" in the United States. Their trucks uniformly feature a "Frosty Treats" logo, typically surrounded by the logos of various frozen snacks sold by the vender. Another feature of the trucks is the "Safety Clown
", an image of a clown pointing children towards the back of the vehicle. In the mid 1990s, Sony
released Twisted Metal 2
, a video game that allows players to wreak havoc on simulated streets with a variety of vehicles - including an ice cream truck prominently featuring a logo that says "Frosty Treats". The video game ice cream truck is driven by a crazed clown known as Sweet Tooth
, one of many featured in the game.
Frosty Treats, Inc. filed a lawsuit
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