Mister Softee played hardball against a competitor, and it could lead to a deal sweeter than a vanilla swirl.
But not for the other ice cream man.
Last summer, the companies that own Mister Softee and its Bronx spinoff filed a lawsuit in federal court, accusing a rival ice cream truck operator of trademark infringement. Mister Softee Inc. and SPABO Ice Cream Corp. said Jesus Ramos Valdes lured away customers in the Bronx by selling ice cream out of a truck painted with their trademarked blue trim. They said he even imitated the famous Mister Softee jingle.
Mister Softee is a New Jersey-based, family-owned business that’s been selling ice cream since 1956, according to court papers. The company also licenses franchisees to use its name, trademarked design and jingle. Mister Softee has a history of going after competitors. Court records show the soft serve corporation has filed trademark infringement cases against a host of other ice cream trucks in Queens, Connecticut, Pennsylvania and even as far away as Arizona.
A photo of a Mister Softee truck included in the lawsuit.
Federal legal papers and MISTER SOFTEE, INC. and SPABO ICE CREAM CORP.
Valdes had not been expected to defend himself in court, which would mean that a federal judge in lower Manhattan would likely have sided with Mister Softee and banned the alleged copycat from imitating the company ever again.
But in a twist — of the legal variety, not the chocolate and vanilla kind — Valdes walked into the courtroom Monday and told the judge his days of soft serve sales are over.
“Sir, apparently you’re driving an ice cream truck?” Judge Mary Kay Vyskocil asked Valdes.
“Not no more,” he replied.
Valdes said he had sold his truck to the woman he bought it from. Without the truck, the judge said, he no longer posed a risk.
Attorneys for the ice cream empire weren’t convinced. The brief hearing was sprinkled with tension, as the lawyers pressed Vyskocil for assurance that Valdes wouldn’t go back to his old ways.
“We’ve been chasing him down for a year,” said Zachary Margulis-Ohnuma, an attorney representing Mister Softee and SPABO.
The truck Jesus Ramos Valdes was driving.
Federal legal papers and MISTER SOFTEE, INC. and SPABO ICE CREAM CORP.
“He’s right there!” Vyskocil said. “Stay here and talk to him. I mean, it’s like you want to have a fight.”
The judge urged both sides to meet with Valdes outside the courtroom and reach an agreement. She warned Valdes that if he and the ice cream companies couldn’t settle the dispute amongst themselves, he could face a long and expensive court battle.
“Talk to him,” Vyskocil told the lawyers. “He’s a human being.”
The judge also said she had no intention of forcing Valdes to pay the ice cream companies’ attorneys’ fees. She lambasted Mister Softee and SPABO for hiring so many lawyers and paying them $900 an hour.
“This is what’s known as overkill,” Vyskocil said, adding: “This man is representing himself. He doesn’t seem to have a lot of resources.”
On a bench on the 18th floor of the Daniel Patrick Moynihan U.S. Courthouse, Valdes and a friend sat beside a lawyer and a paralegal, speaking in a mix of Spanish and English as the ice cream companies’ legal teams pleaded with Valdes to sign a piece of paper promising not to operate the copycat ice cream truck or play the Mister Softee jingle. At times, Valdes stood up and paced. He asked questions. He expressed distrust. He considered leaving and getting his own lawyer.
But after about an hour, Valdes relented. He signed the declaration, handwritten on a yellow legal pad and translated into Spanish.
“Send me the papers,” he said as he walked toward the elevators. “Thank you.”
When Gothamist asked Valdes in Spanish whether he would like to discuss the case about the ice cream, he replied, also in Spanish: “I don’t know anything about that.”
Then the elevator door closed, and he was gone.
Attorneys for Mister Softee and SPABO did not immediately respond to a request for comment.