When Competition Goes Too Far: Ice Cream Truck Edition [e173]

April 6, 2015

The guys kick off the week discussing how Sno Kone Joeallegedly stalked and harassed Mr. Ding-A-Ling and what crosses the line for fair competition.

Full Podcast Transcript

NASIR: All right. Welcome to our podcast where we cover business in the news and add our legal twist. My name’s Nasir Pasha.

MATT: And I’m Matt Staub. You remember last week when we recorded?

NASIR: It was a week ago but I do remember.

MATT: The people trying to break into the room?

NASIR: Yeah, that was crazy. Who was that?

MATT: It was a rival podcast of ours.

NASIR: No way!

MATT: Yeah, they tried to break in and yell stuff while we were recording. You know, it’s competition for them, so they didn’t want us to be recording. They thought, maybe if they came in and yelled things, that’d get us out of sorts or maybe people would stop listening because they’d just hear people yelling in the background and no one wants to listen to that.

NASIR: It was disrupting.

MATT: But, yeah, apparently this happens in other spots as well and much more hilarious names than ours. There’s a battle between Sno Kone Joe and Mr. Ding-A-Ling – two ice cream truck vendors that are in Gloversville, but I don’t know what state that’s in. The lawsuit was in Upstate New York.

NASIR: It must be in New York then.

MATT: Yeah, I would think so. This is very town-centric because basically you have Josh Malatino – he’s Mr. Sno Kone and he’s had his business, I guess, for a while in Gloversville – and there was a new guy that came in town, Mr. Ding-A-Ling – you know, new into town, just trying to give ice cream presumably to kids. Kids love to hear that sound of the ice cream coming through. I actually hear it every now and then at my house.

NASIR: Well, I’m trying to figure out if the Sno Kone guy, what’s his name? Sno Kone Joe?

MATT: Sno Kone Joe, yeah.

NASIR: Well, snow cones are different than ice cream so does Sno Kone Joe also sell ice cream? I feel like he does because the one that was upset, I suppose, they would follow the other competitor’s ice cream truck and then give out ice cream, basically killing the business. You know, I thought this was a joke but, you know, people get pretty competitive in the food truck business, right? And, apparently, I think there’s a Simpson’s episode about that, if I recall, which is also about franchises. So, interesting tie-in for us lawyers.

MATT: Yeah, and let me get to some of the things that happened. Basically, Sno Kone Joe got upset that there’s this new competition in town. He would just follow around the other guy, just yelling at him, “You don’t have a chance! This is my town!” You know, he did get arrested for stalking or bullying – however you want to, I guess, more so stalking. He would just pull up behind the guy and yell “free ice cream!” to people as the second guy was trying to sell his product.

NASIR: So, what makes this a little bit more interesting, and I was trying to find more information about this, but the Mr. Ding-A-Ling owner, Brian Collis, Ding-A-Ling says that he and the previous owner of Sno Kone Joe had an agreement not to bring in Mr. Ding-A-Ling trucks into Gloversville. Okay. Just to follow what’s going on here because I know these names are confusing, Mr. Ding-A-Ling had an agreement with the former owner of Sno Kone Joe’s business saying, “Okay. We’re not going to bring any Ding-A-Ling trucks into Gloverville,” but that arrangement ended as soon as – let’s see – Malatino, who is what?

MATT: Mr. Sno Kone.

NASIR: He’s Mr. Sno Kone or Sno Kone Joe or whatever. So, as soon as he took the business over, that agreement somehow went out the window. And so, Ding-A-Ling trucks took advantage of that. Now, the question was, okay, if this agreement existed, was it in writing and, by Malatino or Sno Kone Joe, by taking over the business, did he take on that agreement as well and as restricted in that respect?

MATT: So, such a very professional and legal actual substance to this with two hilarious names.

NASIR: Yeah.

MATT: Sno Kone Joe did get arrested for the sort of stalking and harassment issues it had and I guess this has happened for a couple of years now – back in 2013 – but the Upstate New York Court judge just dismissed the stalking harassing charges against Sno Kone Joe so I guess it wasn’t serious enough to warrant any sort of punishment other than getting arrested, of course, as an ice cream truck owner. But I don’t know how that agreement really plays into the stalking and harassment charges. I guess I’d have to see the agreement and just see kind of what was in there.

NASIR: I have a feeling that – I don’t know – this may have been just a handshake deal because, apparently, when speaking to the old owner – this is the Sno Kone Joe saying it – I guess he told the old owner something like, “Don’t worry. He won’t come around here.” So, it seems a little casual to me which, you know, they could have carved out territory. They could have said, “Okay, you know, you have this area, I have this area.” You can put it in an agreement, like, if you sell your business that you have to restrict their use of those assets and those names in order for you to be able to sell. So, there is a way to have successors in that restrictive covenant. I’m happy that we were able to find a nice legal substance out of this story that we just wanted to cover because it was so funny.

MATT: Yeah. I mean, I can’t even imagine this being in court. I mean, are they using the names of these businesses?

NASIR: I know.

MATT: It just seems so funny. Like I said, the judge threw it out. You know, I wonder if it’s just because the judge got this and just said, you know, “This is so ridiculous and a waste of time that it’s just not even worth the battle.”

NASIR: It seemed like they may have had a case for harassment but it may not have crossed that line. I mean, some of the language – I don’t know if you read this already – one of the allegations where the defendant would follow his ice cream truck, yelling like a villain in one of those old movies, “You don’t have a chance! This is my town!” Ah, I love it.

MATT: And it’s funny, if you look at the two different business owners in this, you would think that it was the opposite way around. Like, the guy that was getting harassed looks very rough and he’s older. You know, he’s probably twenty years older than the guy who was doing the harassing so you would think the guy who was older, who’s been around a long time, he would be the one that was upset with a new business coming into town. But, at the end of the day, we’re talking about ice cream trucks. I mean, can there be too many ice cream trucks?

NASIR: That’s the real question.

MATT: There’s room for two, right?

NASIR: Well, I’m sure you guys have all seen those food truck parking lots and they move around and so forth. In that example, if there were two food trucks in the same parking lot that basically served the same or similar food, that can be a problem. You know, you compare it to dealerships that all line up next to each other and there’s benefit for that because, when you want to buy a car, you’re able to compare and there’s actually benefit for the dealerships to do that. And so, the question is, is it the same with ice cream? I don’t know. I can see how, especially if your ice cream’s not that good, I’d be more concerned, right?

MATT: They’re all selling the same stuff, I would suspect.

NASIR: Well, like I said, if they’re doing snow cones, that’s a much different treat and some people will go for that before they’ll go for just the regular ice cream.

MATT: You did mention that the Sno Kone Joe is a franchise, right?

NASIR: No, I don’t know the Sno Kone Joe franchise.

MATT: It says Malatino who owns homegrown Sno Kone Joe franchise has threatened rival ice cream trucks before.

NASIR: There is a Joe Sno Kone in South Houston here in Texas and looks just like, I mean, I grew up in Vandalia, Ohio, where, on the corner of the parking lot of Kroger’s, it was literally like a small shack and it was called the Sno Shack – I think that’s what it was called. My friends from high school will probably correct me if I’m wrong but that was the place to go in the summer – of all ages from, like, zero to eighteen years – and that institution of a place, I think, closed down less than a decade ago.

MATT: Probably because Sno Kone Joe was driving around harassing them, yelling, “This is my…” I mean, under what sort of thought process is this guy yelling, “This is my town!” All he does is operate an ice cream truck.

NASIR: We should note that it was him and his girlfriend that got arrested the first time because they were shadowing the other driver, basically blaring their jingles and trying to pry customers away, saying, “Free ice cream!” et cetera. So, he had a partner in crime, so to speak, allegedly.

MATT: I mean, I don’t know, we had a lot of fun with this. I don’t know if we touched on enough legal side to it.

NASIR: That’s okay.

MATT: Speaking to competition, healthy competition is all good and fine but, you know, there’s a line that can be crossed because we’ve dealt with, I mean, we’ve dealt with this before in terms of businesses that their employees of Business A will leave negative reviews on Business B’s site. I mean, you can’t do stuff like that. It’s not truthful.

NASIR: What’s going on now is negative SEO. I don’t know if you know much about that but have you heard of that? Negative SEO?

MATT: Yeah, you were talking about it.

NASIR: It used to be kind of a myth where the concept of search engine optimization is that, okay, you’re going to do certain things in order for your website to appear in Google’s search rankings at a higher level based upon certain keywords. And so, that’s what SEO is known for. But the negative SEO is the opposite – taking certain listings or certain websites and dropping them down on the search using Google’s own algorithm because, what Google will do is, they’ll punish you for trying to manipulate the so-called black hat tactics to try to manipulate your rankings. And so, for the first time, people are starting – for the first time in the last, I think, this is like a year or two-year issue, if I understand correctly, that this is starting to happen – and there’s no law that necessarily prohibits them. And so, even filling a lawsuit, you would have a hard time combatting this.

MATT: Yeah. I mean, that’s the ugly side of it. I mean, I guess for a business like an ice cream truck that pretty much all their business is just going to be driving around, playing their little song, then it’s probably more detrimental to have someone following you. Like, no one’s going to see an ice cream truck go online and look up the reviews.


MATT: Probably because, first of all, it’s going to be kids for the most part. And, two, I guess is, “Do you heard that sound?” It’s one of those things in life where you hear the sound and you know exactly what it is.

NASIR: I know. They have those exact tunes which always makes me wonder whether there’s a copyright attached to that, whether they have the rights to play it.

MATT: I remember, wasn’t it last summer you went around the local Houston area and were handing out cease and desist letters to ice cream trucks as they were serving kids?

NASIR: That was me, yup! That was me. I got on the news for that. That was great.

MATT: Pretty crazy. There was a big public backlash against you because you shut down every ice cream vendor in the greater Houston area and the kids were pretty upset about it.

NASIR: Well, I gave the letters to the kids too because they were aiding and abetting to copyright infringement so the hard part with that is I had to serve the parents because they were minors so it became kind of awkward.

MATT: Ah, the worst type of person.


MATT: That would be so terrible.

NASIR: All right. Well, thanks for joining us, everyone. That was a nice episode. We do got to cover negative SEO. I think we’ve got to add that to our topic list.

MATT: Yeah, it’s crazy. It’s an interesting thing. I don’t know if many people even know about it.

NASIR: I don’t even know about it. I just made that word up.

MATT: Ah, all right. Well, I think that’s it so keep it sound and keep it smart.

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Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
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