For an anthropomorphized cylinder of liquid sugar, Mister Softee is a litigious man. After we ran our profile on Victor the ice cream man last month, attorneys for Mister Softee took notice, and filed a lawsuit against the owner of Victor's truck for illegal use of the Mister Softee jingle.
While the "New York Ice Cream" truck Victor was driving bore no trace of the bowtied federal trademark, the jingle, "The Mister Softee Sonic Mark," is also trademarked.
Mister Softee's sonic trademark, written in 1960 (PACER)
Those notes are the notes Victor, who is not named in the suit, said he hears "when they're off, I hear them in my sleep."
He added, "They painted my truck last year because Mister Softee wants thirty grand now. They used to charge fifteen grand." That money permits truck owners to use the special Mister Softee music box. Last week, Mister Softee sued.
"The Mister Softee Sonic Mark is famous, as it is widely recognized by the general consuming public as the designation of Mister Softee's cream products," the lawsuit reads. If Victor's truck continues to use the jingle, the lawsuit argues, "the goodwill associated with Mister Softee's Sonic Mark will be diluted and taken from Mister Softee's control."
The complaint also suggests that anyone who buys ice cream from a truck using an unlicensed Mister Softee jingle does so at their own peril:
Mister Softee has no ability to ensure that Defendants are storing and dispensing their ice cream products in compliance with applicable health standards and laws. As a result, customers may become ill if the ice cream is not properly stored and dispensed and the trucks and equipment are not operated in a sanitary manner.
Last summer a federal court judge barred the use of the knockoff "Master Softee" trucks, owned by Dimitrios Tsirkos. Tsirkos later submitted court documents stating that the trucks were then sold; Victor's truck is now owned by Dimitrios Konstantakakos, of 3 DDD Ice Inc., warehoused in the same Long Island City complex as Tsirkos' old business.
Mister Softee is asking the court to prevent Konstantakakos from using the jingle, and for "treble damages." According to the court's website, Konstantakakos has yet to be served a copy of the lawsuit.
As Victor put it, "this is a cutthroat job."