## Facts

- Frosty Treats and affiliated companies operated branded ice-cream trucks using the “Frosty Treats” name and a “Safety Clown” graphic instructing children to cross behind the truck.
- Sony Computer Entertainment America published the *Twisted Metal* video game series featuring an ice-cream truck driven by a clown character known as “Sweet Tooth.”
- In *Twisted Metal: Small Brawl*, the in-game ice-cream truck displayed the words “Frosty Treats.”
- Frosty Treats sued Sony in federal court asserting trademark infringement, unfair competition under the Lanham Act (including 15 U.S.C. § 1125(a)), and trademark dilution under federal and Missouri law.
- The district court granted Sony summary judgment on all claims, concluding the “Frosty Treats” mark was not protectable and that Frosty Treats failed to show likely confusion or actionable dilution.
- Frosty Treats appealed.

## Issues

1. Whether the “Frosty Treats” word mark was protectable as a distinctive mark or as a descriptive mark with secondary meaning.
2. Whether Frosty Treats could establish infringement or unfair competition based on the “Frosty Treats” wording, the Safety Clown, or the asserted truck trade dress, including a likelihood of consumer confusion.
3. Whether Frosty Treats’ marks were sufficiently “famous” to support dilution claims under federal and Missouri law.

## Decision

- The Eighth Circuit affirmed summary judgment for Sony on all claims.
- The court held the “Frosty Treats” word mark was descriptive and lacked evidence of secondary meaning, making it unprotectable on the record presented.
- The court held Frosty Treats failed to raise a triable issue of likelihood of confusion between its marks/trade dress and Sony’s in-game depictions.
- The court rejected dilution claims because Frosty Treats did not show its marks were famous as required by federal or Missouri dilution law.

## Legal Principles

- A descriptive mark is protectable only upon proof of secondary meaning—consumer association of the term with a single commercial source.
- Infringement and Lanham Act unfair-competition claims require evidence supporting a likelihood of confusion; weak marks and dissimilar commercial contexts can defeat confusion as a matter of law.
- Dilution claims require a “famous” mark; niche recognition or business size alone is insufficient without proof of fame meeting statutory standards.
- Summary judgment is proper where the nonmovant fails to produce evidence sufficient to establish an essential element of its claims.

## Conclusion

The court affirmed judgment for Sony because “Frosty Treats” was descriptive without secondary meaning, Frosty Treats could not show likely consumer confusion arising from a violent video-game depiction, and the asserted marks were not famous enough to support dilution.


Frosty Treats, Inc. v. Sony Comput. Ent. Am., Inc., 426 F.3d 1001 (8th Cir. 2005)