Ahhh! The sounds of summer: the chirping of cicadas high up in the trees, the distant rumble of thunder as dark clouds begin to gather in the heat of day, the calliope-like tinkling of the bells of the ice cream truck as it meanders down the street, and the excited squeals of the children as they rush out to greet this rolling vendor of frozen goodness. How many of those kids dreamt of one day having their own ice cream truck and being able to eat ice cream all day long? Who wouldn’t? Unfortunately, it may not be as simple as all that. Here in Texas, as in other states, ice cream trucks are regulated, and operators must obtain the requisite permits to sell ice cream.

At the state level, mobile food units (MFUs) are governed by Chapter 437 of the Texas Health and Safety Code, and the Texas Department of State Health Service (the Department) is the entity through which MFUs are granted permits, except in certain instances mentioned in the statute. Under the Texas Administrative Code (TAC), an ice cream truck also can be classified as a roadside vendor because food is not prepared or processed by the vendor; the ice cream truck operator merely sells the ice cream. Nevertheless, under the TAC, the ice cream truck still is considered an MFU and therefore subject to the permitting requirements established by state law. In this regard, the Department has provided a checklist of requirements necessary to obtain approval for the operation of MFUs within its jurisdiction.

Tex. Health & Safety Code § 437.002 gives a county or public health district the authority to enforce state laws and rules concerning MFUs, but not the authority to adopt laws. In Harris County, persons wanting to operate an ice cream must obtain a permit from the Environmental Public Health Division (EPH) of Harris County Public Health. As part of the permitting process, the MFU must be brought to the EPH for a physical inspection by EPH staff and the Harris County Fire Marshal. Aside from the necessary documentation such as a valid Texas driver’s license and vehicle registration, there are certain equipment requirements that must be met as well as daily cleaning rules.

The City of Houston’s rules governing mobile food units can be found in Section 20-22 of the City of Houston Code of Ordinances. In Houston, an ice cream truck is classified as a restricted MFU, and as such, is the only MFU that can operate on city streets. It must have a CAUTION CHILDREN sign with warning lights and can only stop long enough to distribute the ice cream to interested customers. In addition, in accordance with Tex. Health & Safety Code § 437.0073 and Houston Ordinance § 20-22(c), all MFUs must first obtain a medallion to be able to operate within the city. Houston also requires the servicing of the mobile food unit within 24 hours period preceding operations.

You may wondering, however, about what brought on these ice cream truck musings. Today, August 14 just happens to be National Creamsicle Day, a celebration of that refreshing combination of vanilla ice cream covered in orange sherbet. Although the day has no real historical significance, it’s just fun to think about those things that brought us happiness as children and continue to bring us joy, especially as we melt away on these hot and humid days of August.

In celebration of National Ice Cream Month, the Harris County Law Library would like to spotlight an ice cream dispute involving one of our capital city’s favorite desserts. In the summer of 2013 Austin-based Amy’s Ice Creams, Inc. filed suit for trademark infringement and related claims against Amy’s Kitchen, Inc., a manufacturer of frozen vegetarian and vegan foods sold in grocery stores across the United States.

Prior to the suit Amy’s Ice Creams filed a federal trademark application for its mark on t-shirts, catering, and “restaurant services featuring: ice cream, fruit ice, candy, chocolates and beverages.” Amy’s Kitchen opposed the application, having begun its own expansion into the cold treats business with a line of “non-dairy frozen desserts.” Applications by Amy’s Kitchen to trademark its mark for cookies and candy bars were then in turn opposed by Amy’s Ice Creams. When discussions between the parties failed to bring about a resolution, Amy’s Ice Creams sued.

Anyone with doubts about the prudence of fighting a protracted legal battle over the name “Amy” will be happy to learn that both “Amy’s” eventually came to the same conclusion. In Amy's Ice Creams, Inc. v. Amy's Kitchen, Inc., 60 F.Supp.3d 738 (2014) the court, inter alia, granted Amy’s Kitchen’s motion for summary judgment on Amy’s Ice Creams’ unjust enrichment claim, denied Amy’s Kitchen’s other motions for summary judgment, and denied Amy’s Ice Creams’ motions for summary judgment. In other words, for either party to obtain relief through the courts, a full (and likely expensive) trial would be necessary. Both parties subsequently dismissed the lawsuit and Amy’s Ice Creams narrowed its food services trademark to “restaurant services featuring ice cream; catering.” It’s a winning scenario for everyone: The two companies no longer have to argue whether the name “Amy’s” is distinctive or has secondary meaning in Texas, and Texans are free to enjoy a greater variety of ice cream—both with and without dairy.

Ex Libris Juris - HCLL Blog