Ice Cream Rivals Take Competition to New York Court Over Jingle

Mister Softee's famous jingle is at the center of a legal ice cream battle.

ByABC News
August 19, 2015, 1:33 PM

— -- A heated lawsuit is pitting ice cream truck against ice cream truck over a familiar jingle.

"Here comes Mister Softee, the soft ice cream man," the jingle for Mister Softee's ice cream trucks starts. Based in Runnemede, New Jersey, Mister Softee Inc. has owned the copyright to the tune since 1960, according to its sheet music. But the company is crying foul against a rival ice cream truck, alleging that the competitor is using its jingle to sell ice cream in Brooklyn, New York.

Mister Softee filed a lawsuit last week in New York federal court against Dimitrios Konstantakakos and 3 DDD Ice Inc., alleging trademark infringement. The company's lawsuit points to a video posted on the website Gothamist on July 29, 2015, that features the defendant's truck playing the jingle "as it attracts customers."

In the Gothamist video, the defendant's driver insists that his business is "cutthroat" and that there is often room for only one ice cream truck in a prime location.

Mister Softee said it owns a federal trademark on the jingle and only authorized Mister Softee franchisees are permitted to use it, according to Jeffrey Zucker, attorney for the company that's been in business since 1956.

A New York Ice Cream truck sits outside a building in the Brooklyn borough of New York on Aug. 18, 2015.

"It's also unfair to Mister Softee's hard-working franchisees, who pay an annual fee to use the trademarks," Zucker said. "Mr. Konstantakakos does not pay a fee, and is competing unfairly by using the Mister Softee jingle to attract customers to his non-Mister Softee truck. Customers, including children, hear the tune and believe the Mister Softee truck is coming. This unlawfully and unfairly takes business from Mister Softee's franchisees."

Last year, Mister Softee sued the prior owner of Konstantakakos' truck for using the mark "Master" Softee. The court ruled in favor of Mister Softee and ordered the prior owner to cease using the name, because it could be confused with Mister Softee. A judgment of $97,464 was ordered against that defendant, who was held in contempt for continuing to operate the ice cream trucks in violation of an injunction order. Zucker said Mister Softee is still trying to collect that judgment and is awaiting the judge to enter a final judgment against that defendant.

PHOTO: A Mister Softee ice cream truck makes its way through the streets of  Brooklyn, New York, June 18, 2007.
A Mister Softee ice cream truck makes its way through the streets of Brooklyn, New York, June 18, 2007.

That prior owner allegedly then sold the truck to Konstantakakos, according to Mister Softee's lawsuit filed last week. Konstantakakos was deposed on Dec. 12, 2014, as part of the discovery in the other lawsuit and admitted he owns the "infringing truck" and 3 DDD Ice Inc., according to the complaint filed last week.

Konstantakakos did not respond to ABC News' request for comment.

The ice cream truck company also has concerns about the quality and cleanliness of the rival's truck.

"If the ice cream is sour or spoiled, or the truck is not clean, customers may blame Mister Softee, and this harms Mister Softee and its franchisees," the company said in a statement.

According to sheet music posted to the Mister Softee website, the "Mister Softee Jingle and Chimes" was copyrighted in 1960.