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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.
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.
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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