Frosty Treats, Inc., the modern-day pied piper, tempting children with, well, frosty treats from its ice cream trucks, sued Sony Computer Entertainment for trademark infringement based upon Sony’s use of the mark FROSTY TREATS on the side of an ice cream truck in its video game “Twisted Metal.” Frosty claimed that the use of the truck with a clown, coupled with the words FROSTY TREATS emblazoned on one of the trucks would chill its trademark rights and cause confusion among consumers as to whether Frosty sponsored, endorsed, or was affiliated with the game.

The 8th Circuit affirmed a lower court ruling that there was no infringement, because notwithstanding the long time use of the mark by Frosty, the term “frosty treats” was descriptive of frozen ice cream desserts and the mark FROSTY TREATS, as used by the ice cream company, was printed in smallish letters on the back and side of the trucks, so as to appear descriptive of the many ice cream decals plastered around the truck. Frosty’s survey, evidencing some consumer confusion related to seeing the labeled truck in the video game, was thrown out. As to the clown, the 8th Circuit overturned the trial court’s holding that it was functional (the clown directed children to safely cross the street) was overturned, but held nonetheless that no triable issue of fact existed. We believe it’s game over for Frosty’s.

The FTC and the Department of Health and Human Services is planning a jointly sponsored workshop on Marketing, Self-Regulation, and Childhood Obesity on July 14th and 15th in Washington, D.C. The workshop will be the first of its kind and aims at bringing together the concerns and interests of the medical community, food and beverage marketers, media, and entertainment companies to discuss the issue of children’s obesity.

HHS secretary Michael Levitt has identified children’s obesity as one of the “major health challenges facing the nation.” The two-day workshop, says FTC Chairman Deborah Platt Majora, will allow affected industry professionals to devise strategies for dealing with the new issue and perhaps creating a self-regulatory body between industries.

Practice Pointer: Clients should be encouraged to participate in and support self-regulatory bodies. These bodies can actually work to reduce the amount of adversarial proceedings against private companies, and reduce the cost of reworking advertising.

The U.S. Supreme Court has ruled that states that allow their own in-state wineries to ship wine to consumers may not bar out-of-state wineries from also selling directly to those same consumers. This is of particular significance to direct-to-consumer wineries who are too small to use wholesalers to get wider distribution. Advertising and marketing analysts expect to see a boom in wine advertising in the coming months.

Roughly 23 states maintain laws on their books that bar out-of-state shipments of alcohol to consumers in-state unless the shipper either has a “brick-and-mortar” presence in the state (California & New York), or uses a wholesaler licensed to distribute in the state (Michigan). The Court points out that states that do not allow alcohol shipment from any company — in-state or otherwise — to their constituency, do not have to accept out-of-state shipments.

Consumer advocates say that the Supreme Court ruling is a victory for the consumer who may see prices reduced and selection increased. We’ll drink to that!

After a year-plus of wrangling with the FTC, Tropicana has agreed to discontinue its claim that drinking its Heart Healthy juice is guaranteed to lower bad cholesterol.

The FTC alleged that many of the claims made to consumers regarding its Tropicana Orange Juice were unsubstantiated, including the claim that Tropicana had clinical evidence to support a 10-point drop in blood pressue simply by drinking three glasses of its juice a day.

Without admitting guilt, Tropicana agreed to a consent order that would prohibit claims that any of its products will have a positive effect on the risk of heart disease, cancer, or stroke, unless it is substantiated with “competent and reliable scientific evidence.”

Given the current concern over obescity in America, its likely that the FTC will continue to look closely and carefully at food claims.

Practice Pointer: Until recently, many companies regarded an “FTC Warning” as advisory in nature. Clients who are making claims relating to food products should be made aware that the FTC appears now to be cracking down on health claims (be they “low fat,” “heart healthy,” or otherwise), and more and more companies will feel the weight of Congress behind them.