Trademarks and the Ice Cream Truck

I came across an interesting piece of intellectual property news today. Apparently the ice cream jingle many of us remember rushing outside to intercept in the middle of summer is trademarked by Mister Softee. A small New Jersey company, Danny's Soft Serve, has apparently settled a lawsuit Mister Softee filed last year claiming trademark infringement among other things. Apparently Danny's used the exact same Mister Softee song and used a very similar blue and white color scheme on its trucks. Mister Softee, for its part, stated that it must constantly police its trademarks for imitators every summer.

This case illustrates the broad array of elements of a product that can be trademarked. I am often surprised at how many companies simply settle for a trademark words, or perhaps a design. But Coca Cola trademarked its iconic bottle shape, Mister Softee obviously trademarked its ice cream song, and there have even been court rulings that scent can be trademarked. Still, this case raises a few questions for me.

Is the ice cream song generic? I personally do not attribute the ice cream jingle to any one particular company. I just know that it is associated with ice cream coming by way of a truck. Does Mr. Softee claim a copyright in this song? If so this seems one of those slippery slope cases of a copyright owner trying to obtain perpetual rights in the copyrighted work by asserting trademark protection. I also wonder where we draw the line if Mr. Softee can trademark its ice cream jingle. Would Mr. Softee assert that the man who comes by my neighborhood with an ice cream cart ringing a bell is violating its trademark? I will see what more I can find out about this case and post if anything interesting comes about.

Categories: Trademark Law

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