Food, Intellectual Property, Trademarks

I Scream, You Scream, We All Scream For Trademark Infringement

The ice cream season is finally here! Can’t you tell from the 50 degree weather and driving rain? Well, technically ice cream season is here and that means the streets will be filled with ice cream trucks peddling their tasty wares and blaring “Pop Goes the Weasel” or some such.

If you’re one of the lucky ones living in a city serviced by the venerable Mister Softee, you’ll get their original song drilled into your head. You can listen to it on a loop here if you’re working at a CIA black site and looking for some new jams to play for your guests. Did you know it had lyrics? Apparently it does. Who knew?

When you’re the preeminent “soft-serve out of a truck” vendor, people come gunning for you. Usually by looking ever so suspiciously exactly like you.

You actually will not believe the name of the company Mister Softee is suing….

Master Shake doesn’t have time to file lawsuits when he’s rocking out.

Master Softee. That’s not laughably designed to trade on Mister Softee’s goodwill with consumers at all. Nope. No way.

Frankly, the only good defense I can think of is, “We weren’t trying to horn in on your name… we wanted to horn in on Master Shake.”

Unsurprisingly, this new competitor grew from the ranks of a former Mister Softee franchisee who already had some trucks lying around. The New York Daily News has the story:

The New Jersey-based owner of the ubiquitous ice cream trucks is suing a rogue Queens vendor, charging he opened his depot in Long Island City to peddle a knockoff version.

A mix of about two dozen nearly identical Master Softee and Mister Softee trucks are lined up inside and outside Dimitrios Tsirkos’s 11th St. garage.

The fledgling business has soured tempers throughout Mister Softee headquarters in South Jersey and its franchisees across Queens and the Bronx.

Owner Jim Conway cried trademark infringement in a March lawsuit filed in Manhattan Federal Court and demanded Tsirkos drop the Softee con.

So how similar could they possibly be? Here’s a Mister Softee truck:

Here’s a Master Softee truck:

And that’s before we take into account that their names are one letter off. There are so many different names a soft-serve vendor could use to distinguish itself from the competition, like, “Everyday Should Be Sundae,” “A Midsummer’s Ice Cream,” or “Americone Wet Dream.”

But some of the Master Softee employees don’t get the problem:

“Mister Softee does not make this business,” bellowed one driver in the Long Island City depot. “It is the people — and the people work hard.”

Tsirkos did not return calls for comment and his lawyer, Nicholas Damadeo, hung up the phone when asked about the case.

Master Softee drivers praised the Tsirkos team saying the Whitestone businessman doesn’t charge the annual $3,400 “royalty” fee that Conway bills his vendors.

“We are going to fight them,” said the depot manager, who would not identify himself by name. “We are going to fight them all the way.”

It is the people that make this business. The people and the market confusion.

Judge Laura Taylor Swain will be making a ruling sometime this month. Meanwhile, if you want to check out the full complaint, it’s available on the next page….

(hidden for your protection)

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