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Fake 'Mister Softee' Ice Cream Truck Loses Trademark Lawsuit

By Mark Wilson, Esq. on January 27, 2015 | Last updated on March 21, 2019

At long last, a New York menace has gotten the punishment he deserved. No longer will the citizens of the Big Apple be victims of this terror.

Thanks to a federal judge, Mister Softee is off the street.

Well, not really. A fake Mister Softee is off the street. The real, legitimate Mister Softee continues to roam free, as he should.

Accept No Imitations

According to The New York Post, Gus Toufos operated a fleet of knock-off trucks that closely resembled the iconic New York "Mister Softee" ice cream trucks, using its trade dress of blue-and-white ice cream trucks. The complaint, filed in 2013, alleges that Toufos copied the design of the truck, "decals of a sundae and milk shake," and a menu design that looked an awful lot like Mister Softee's.

Judge Joan Azrack entered a default judgment in favor of the real Mister Softee yesterday. A default judgment is entered when a defendant fails to respond to a lawsuit at all. The judgment grants a plaintiff whatever he or she asked for in the original complaint. In this case, Toufos was ordered to stop using his fleet of knock-offs and to pay Mister Softee's $8,800 legal bills.

Don't Cross Softee

For a name like "Mister Softee," the company takes a very hard-nosed approach to trademark infringement. As the New York Daily News reported last year, a different federal judge ruled against "Master Softee," another knock-off that also appropriated some Mister Softee trademarks, including the ice cream trucks' paint job and the ice-cream-cone-headed cartoon character.

Master Softee, however, was a waffle cone with vanilla ice cream and sprinkles, as opposed to Mister Softee, whose head is a regular ice cream cone and plain vanilla ice cream. They both have blue jackets and red bow ties. Basically, if one of them stole your purse, you'd be hard-pressed to pick out one or the other from a line-up.

As we've chronicled before, trademarks and trade dress are big problems for corporations. A trademark's continued existence rests on its being unique; if every ice cream truck in New York suddenly had a smiling ice cream cone head on its side, Mister Softee would no longer be representative of one brand of ice cream; arguably, it could represent all ice cream trucks, in general.

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