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[Mister Softee ice cream truck jingle plays]
Kai Ryssdal: Depending on where you grew up This music was the soundrack to your summertime. Even today, when kids hear it, they know the Mister Softee ice cream truck is coming. Problem is Mister Softee's competitors know that, too. And they're not shy about cashing in. Mister Softee's suing dozens of drivers it says copy the trademark look and sound of its trucks. Joel Rose reports.
Joel Rose: It's a muggy afternoon in Brooklyn, and I'm driving around with Hillary "Doc" Guishard, who runs a Mister Softee distributorship a few miles from here. It only takes us 20 minutes to find an ice cream truck that's not one of his.
Hillary "Doc" Guishard: Oh, here's one right here. You see the blue at the bottom and the white at the top? This is a typical example of somebody trying to be a fake Mister Softee.
This truck is only imitating the official Mister Softee colors. But some of the alleged copycats are a lot bolder. They use the music, the name -- even the trademarked graphics on the side of the truck.
Jeffrey Zucker: This mark right here is what we call the conehead mark. It's a cone with the ice cream, vanilla ice cream on top, and a smiley face, and the bow tie. That picture is a registered trademark owned by Mister Softee.
Jeffrey Zucker is the lawyer for Mister Softee, Inc. He's filed trademark infringement suits against hundreds of ice cream truck owners. He has yet to lose a case.
Zucker: Competition is fine. But unfair competition when someone uses our trademarks and operates trucks right in the same areas as our paying franchisees is not fine.
Those franchisees pay thousands of dollars a year in royalties just to use Mister Softee's trademarks. That's on top of the $100,000 it takes to buy a real Mister Softee truck.
Girl: All right, three vanilla sprinkles.
Younger girl: No, this one!
Girl:Oh, forget it. Two sprinkles, yeah, and then one plain vanilla!
Back in Brooklyn, Doc Guishard's customers have more pressing things to worry about. Guishard, who moved to the U.S. from the tiny Caribbean nation of Nevis, says the big losers in all this are the little guys: the franchisees who scrimp and save to start their own business.
Guishard: I'm not able to maximize my potential as a Mister Softee when there are copycats around who don't have the overhead that I have, but are still fooling the kids that they are Mister Softee.
Rose: You don't think the kids distinguish?
Guishard: They don't, because kids are impulsive buyers. All they see is a blue and white truck, and they start running, "Mommy, I want an ice cream."
Mister Softee has been around since 1956. The New Jersey-based company today has more than 300 franchise operators in 16 states. But it's only in the last few years that Mister Softee has gotten serious about protecting its trademarks. That's when the company hired a private investigator named Darrin Giglio to get pictures of the phonies.
Darrin Giglio: There's been situations where some drivers get irate. And they'll jump out of the car. And they'll confront us. There was a driver who once pulled out a pipe and was waving it around.
Right now, Mister Softee has a lawsuit pending against 10 defendants in Brooklyn and Queens. Only one of them has a listed phone number, and he didn't return my calls. Mister Softee Vice President Jim Conway says a lot of the people the company is suing are second- and third-time offenders who register their trucks under fake names each time.
Jim Conway: As we gain the cooperation of the court and the damages become more punitive, people will have second thoughts about this, because they know that we're going to pursue them aggressively.
But even Mister Softee's private eye Darrin Giglio isn't so sure.
Giglio: It's been six years. And we'll probably keep doing it, because some people never learn.
Until they do, Mister Softee will just have to keep playing hardball.
In Philadelphia, I'm Joel Rose, for Marketplace.