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Frosty Treats, Inc. v. Sony Computer Entertainment America, Inc., 426 F.3d 1001, 75 U.S.P.Q.2d (BNA) 1570 (8th Cir. 2005) (full-text).
Appellate Court Proceedings Edit
Judge Morris Sheppard Arnold affirmed the dismissal of Frosty Treats’ trademark infringement suit against Sony. The court found that Sony Computer’s videogame “Twisted Metal” did not infringe Frosty Treats’ trademarks, even though a clown graphic on the side of an ice cream truck in the game was similar to the graphic on Frosty Treats’ own trucks.
The court held that Frosty Treats failed to show that its mark had acquired secondary meaning, and the game’s use of the clown graphic was not likely to cause consumer confusion. Nor did the game dilute Frosty Treats’ mark or trade dress.