Court Case Brought By Dairy Queen Over 'Blizzard' Trademark Infringement On 'Blizzard Water' Begins And Is Dumb
from the brrrrrr dept
I don't know how in the world I missed this over the past couple of years, but I'm just in time to introduce you to a trademark lawsuit brought by the Dairy Queen people against W.B. Mason, an office supply and grocerer, over the latter's "Blizzard Water" brand. This story actually starts back in 2017, when W.B. Mason applied for a trademark on the water product. The company had actually been selling Blizzard Water since 2010, but the trademark application appears to have been what made Dairy Queen aware of that.
And as a result, Dairy Queen filed suit over trademark claims. Dairy Queen argued in its initial complaint that its "Blizzard" mark is famous, which, yeah it is. It also argued that W.B. Mason selling Blizzard Water in its stores was going to cause confusion of origin or association with the buying public. Which... no, come on now. Ice cream is not water and no moron in any kind of hurry is going to confuse the two. Why does Dairy Queen say that product difference doesn't matter? Well, from the filing...
A substantial portion of Dairy Queen's approximately 4,500 DAIRY QUEEN® restaurants in the United States sell bottled water branded with third party marks in close proximity to sales of, and advertising featuring, Dairy Queen's BLIZZARD® treats and the BLIZZARD® Marks. For example, DASANI® bottled water was a featured item on DAIRY QUEEN® restaurant menus in February 2018, in close proximity to BLIZZARD® treats.
And that's pretty much it. Because Dairy Queen sells Dasani water and also Blizzard treats, suddenly it becomes trademark infringement for W.B. Mason to sell branded water. That's... not how this works. It's also worth mentioning that W.B. Mason didn't come up with this branding for water purely to trade off of Dairy Queen's product. Instead, as is detailed out in the court's refusal to both sides to rule for either in summary judgement, W.B. Mason has been selling other "blizzard" branded items for some time, namely paper in its office supplies division. In its analysis on summary judgement, the court essentially falls back on both parties having submitted competing evidence, meaning a trial must ensue. But the court also said:
[The court] notes that the record evidence of intent is weak and Dairy Queen will need to present legal authority to rely on any post-notice evidence supporting intent at trial.
In other words, Dairy Queen indicated that W.B. Mason had knowledge of Dairy Queen's mark but didn't bother to present any evidence of that. On the rest of the trademark claims for the purposes of summary judgement, the court again points to competing evidence, but notes, again, that any evidence of intent to confuse the public is very weak and, while allowing this case to continue due to competing evidence, that there is a ton of evidence on record to demonstrate that (sigh) ice cream treats and water are not directly competing products.
Look, this is all very elongated, complicated, and, ultimately, stupid. I have no idea why Dairy Queen is spending the time and resources to keep an office supply store from selling Blizzard-branded water. It is no threat to Dairy Queen. There are plenty of other companies out there in unrelated markets using the "blizzard" mark as well.
Perhaps the company's legal team is on some kind of manic sugar high.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: blizzard, blizzard water, trademark
Companies: dairy queen, w.b. mason
Reader Comments
Subscribe: RSS
View by: Time | Thread
opens a bottle of blizzard water & turns it upside down over the judges head
Nope not similar at all and hopefully this little shower will clear any thing out making you think that there was any case here at all.
[ link to this | view in chronology ]
company's legal team is on some kind of manic sugar high.
Nailed it! Billable hours to be chalked up by those who spend their days trawling for camel spines at pre-elastic failure.
[ link to this | view in chronology ]
Re: company's legal team is on some kind of manic sugar high.
Hey you! Yes, you, Legal Department. We have you on retainer, yes? Well how about we get some value out of you...
[ link to this | view in chronology ]
Re: Re: company's legal team is on some kind of manic sugar high
Best as I can tell, Most business owners / majors have almost no legal training in Copyright / Trademark law. They treat this stuff as "lawyer stuff" and let the legal teams do what they will based on the whims of the CEO or Legal Officer's opinion.
This is of course an insane way to run a business, but if it works for Nintendo and Monster, I guess it works for anyone with a money hungry legal team.
[ link to this | view in chronology ]
I'd like to see Dairy Queen take on Blizzard the game company. Hey, if you're gonna do something stupid, why not go all the way?
[ link to this | view in chronology ]
Re:
Not to mention the Weather Channel. They use the word all the time.
[ link to this | view in chronology ]
Re:
Between sexual harassment lawsuits and waning support for their games, Blizzard might not be such an attractive target anymore. Or their weaker position might make them more attractive. Depends on how you look at it.
[ link to this | view in chronology ]
Re: Re:
The only Blizzard game I played was Rock 'n Roll Racing (and a tiny bit of Overwatch), so I on a personal level was never that attracted to Blizzard. That being said, if DQ ever sued the Blizzard-Activision, I'll be going to Orville Redenbacher's factory.
[ link to this | view in chronology ]
Wait, why does this Dairy Queen stuff taste like water?!! They're getting cheap on ingredients!
[ link to this | view in chronology ]
Wait until they find out that when real blizzards melt
they turn into water. Then both companies are going to sue.
[ link to this | view in chronology ]
so... which of these clowns is associated with World of Warcraft? or licensed by Blizzard to use that name in trade?
i can now see both of them being sued by the Blizzard that makes World of Warcraft - they have related trademarks for all kinds of related merchandise and foods that they sell at conventions / conferences
[ link to this | view in chronology ]
"Blizzard of Ozz is the debut studio album by British heavy metal vocalist Ozzy Osbourne, released in September 1980 in the UK and on 27 March 1981 in the US ..."
Cue the lawsuits?
[ link to this | view in chronology ]
I can kinda sorta see ... trademarks are a broken idea
With some effort to be empathetic to the Empress of Udders, I can see that some Dairy Queen franchisee might have some different third party waters in their refrigerator, and then they buy from these people, and all of a sudden they have "Blizzard Water" in their fridges being sold that people might think is related to their other menu items, and people might ask for a "Blizzard Water", and if it turns out that the last five years of "Blizzard Water" were contaminated with prions and people are getting kuru all over the country it will be hard for them to sell "Blizzard" anything even if they never had it in their shop. And most importantly, if they get the notion to make everything in their shop marked "Blizzard", then the "victim" in this case, which is itself seeking status as a Trademark Gladiator, is going to sue them.
None of this actually denies the logic of the article - the reason why this plays both ways is that you have two ants fighting in a jar and they are both victims of the freak that put them there.
There is this underlying assumption that trademark has to be absolutely trivial, casual, like a gun-toting government bureaucrat you can have over for a pot party without thinking twice. I mean, there could be a rule that a trademark to be a trademark has to appear stamped with one of those red-bordered shell script seals the Chinese would use to stamp stuff with. But instead the system expects people to think that any English adjective might really mean that something is legally certified to come from a specific manufacturer. This is a usual case of software developers pushing some garbage on us that they claim is a feature, and then showing (by excessive prohibitions) how much it is truly a bug.
[ link to this | view in chronology ]
Re: I can kinda sorta see ... trademarks are a broken idea
This is a bit of a rant but your onto something key here.
Trademarks as a business name (Microsoft) make good sense. When you get to the submark we really need a lot more sanity here. Microsoft - Windows really needs protection if a firm is also somehow selling self as Microsoft which is a reasonable issue for a window company (don't name your firm Microsoft) vs not being able to put 'Windows' in your name at all because Microsoft might sue you.
This gets even more crazy when your 'Olympic Brewing Company' selling 'Pale Ale'. This results in lawsuits from: The Olympics, Sand box supply, the brewery down the road, the brewery in Olympia, and some firm in Grease named after the Olympics.
People just cant handle the number of lawsuits over names anymore.
[ link to this | view in chronology ]
Original Blizzard
From the mid 70s to the mid 80s Penguin Ice Cream, a local Bloomington Indiana Ice cream parlor, sold a tasty blended ice cream treat they called the Blizzard and handed to you upside down to demonstrate its cohesiveness. In 1985 DQ came out with their own very similar tasty blended ice cream treat that they also called the Blizzard and also handed to customers upside down. The owner of Penguin decided to change the name of his Blizzard to Blizzert after discovering DQ had copyrighted the name "Blizzard" way back in 1946, even though they hadn't used it until 1985. No lawsuits ensued. (Small article about the situation here: https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1005&context=plager ; Penguin no longer exists under that name, they're now called The Chocolate Moose and now call their tasty blended ice cream treat a "Blizz": https://moosebtown.com/menu/)
[ link to this | view in chronology ]
Re: Original Blizzard
This illustrates plot elements from a classic American success story: Patent troll submits bogus claim, mook inventor sweats out a product, mook invents a new definition of "voluntarily" when he sees a million bucks' worth of legal retainer at the door, patent troll walks away with the useful product he earned and owns. Some day the inventor's progeny may be permitted to sweep his floors, if none of them ever (EVER) says anything bad in the intervening decades. Because patents are meant to support the Science and Useful Art of Patent Trolling, are they not?
This is inaccurate comparison - it's not a patent - but then again it's not a copyright either. (I realize that was your source newspaper's error, not yours)
[ link to this | view in chronology ]
Better target.
[ link to this | view in chronology ]
Better target.
Dang since when can you create empty comments by hitting enter in the subject bar.
Anyhow. I know a target that can cause more confusion due to selling actual ice cream.
Sold by Blizzard: https://www.wowhead.com/item=140679/nevermelt-ice-cream.
That would fit the name confusion better then an office supplier selling water.
[ link to this | view in chronology ]
So Dairy Queen's Blizzard is watered down crap now? or soon will be? so this conflicts?
[ link to this | view in chronology ]