Oh yeah, Toft's had cake batter way before 2003. I was eating it in college (98-02). I doubt they stole the recipe, Toft's is strictly yellow cake batter with chocolate icing swirls. Just the same concept!
We eat ice cream year-round here, and most of the BIG places for ice cream stay open all year, but the little road-side stands that pretty much just do soft serve close in the winter.