Intellectual Property Insights from Fishman Stewart PLLC
Newsletter – Volume 22, Issue 14
Share on Social

Dairy Queen’s “Blizzard” Left Out in the Cold
By Zachary P. Grant
Dairy Queen, home of the iconic Blizzard frozen treat, was turned upside down in court. In enforcing its trademark rights for “Blizzard” against W.B. Mason – an office supply store – for selling bottled water and copier paper with the same name, a U.S. District Judge ruled against the frozen dessert giant. The case is a chilling reminder that the root of trademark rights is found in consumer perception.
Trademarks rights are generally limited to a particular field of goods and services. That is why Dove Chocolates and Dove Soap peacefully coexist without confusion. Dairy Queen holds five US trademark registrations for various “Blizzard” marks for frozen confections, directed to its popular soft-serve products that are blended with candy, fruits, nuts, or other sweet items. In contrast, W.B. Mason holds two U.S. trademark registrations for “Blizzard” copier paper, as well as a common-law mark for five-gallon jugs of “Blizzard” spring water. In its lawsuit against W.B. Mason, Dairy Queen claimed there is a distinct risk of consumer confusion because both companies sell bottled water, although Dairy Queen’s bottled water is not branded with the Blizzard mark.
In a 217-page opinion, U.S. District Judge Susan Richard Nelson soundly rejected Dairy Queen’s theory in a major win for W.B. Mason. The judge pointed to several important facts in determining likelihood of confusion between the “Blizzard” brands in question. Among them, Dairy Queen introduced no evidence of actual consumer confusion, the brands coexisted without confusion for 11 years, and the businesses each appeal to distinctly different audiences, namely, Dairy Queen is primarily a restaurant that sells food and beverages to consumers, while W.B. Mason is a business-to-business retailer of office supplies. W.B. Mason’s catalog does offer large, five-gallon jugs of water, but such a product is intended for use in office breakrooms rather than sold to individual customers. In other words, the court was confident that people are generally aware that a company that sells small water bottles with its frozen dessert is not the same company that sells giant water jugs to complement the stacks of printer paper in the office.
Dairy Queen has expressed an interest in appealing the ruling, but the road to success is icy. Enforcing trademark rights is a critical endeavor for all brand owners, but prudent observation and analysis of the actual threat of confusion must be carefully considered. If you are enjoying a frozen dairy treat in the office breakroom this summer, see if you can spot any other trademark anomalies of unassociated companies with similar branding. Hint: the sugar brand your find in the cabinets is not related to the pizza brand on your table.
Answer: Domino Sugar / Domino’s Pizza
Published July 8, 2022
Finny continues his adventures around the world!
Finny is now on Instagram! His account is @followfinny.
Sir Finnegan, known as “Finny” to his school of family and friends, is taking a trip to explore the diversity of intellectual property all around the world. If you see Finny on his journey, please take a picture of Finny and post it on social media with the hashtag #FollowFinny so we can track his progress. A plush toy of Finny is available to take home HERE.
Related Content from Fishman Stewart
Why is IP Protection Crucial for Small Businesses? We understand the challenges faced by small businesses, and we encourage you to take proactive measures to protect your intellectual property.
Thanksgiving: turkey, pumpkin (or sweet potato) pie, family gatherings, and of course, a five-story floating Poppin’ Fresh.
Queen of Christmas Sued for Copyright Infringement – Again
FishBits: Mini Article Volume 23, Issue 21
Earlier this month, Mariah Carey was named in a lawsuit in federal district court for copyright infringement. The plaintiffs, musicians Andy Stone (stage name “Vince Vance”) and Troy Powers, allege that the so-called “Queen of Christmas” used their country music song “All I want for Christmas is You” as the basis for her hit pop song with the same title.
The Supreme Court heard arguments last week regarding an appeal of the Patent and Trademark Office’s refusal to register TRUMP TOO SMALL for shirts and sweat shirts filed by Steve Elster
The art of tattooing can be traced back to ancient times. In fact, archaeologists have uncovered tattoo tools that date back at least 12,000 years. However, lawsuits over tattoos and copyright law are a much, much more recent phenomenon.
Intellectual property lawyers don’t just prepare arcane treatises on scientific and technological topics, i.e., patent applications. We also have a host of cool moves and magic tricks up our sleeves.
Trademarks travel. In many ways, that’s one of the primary purposes of a trademark—to distribute the reputation of the brand’s owner widely and efficiently. It is for this reason that trademark registrations issued by the U.S. Trademark Office are entitled to nationwide rights.
Happy Friday the 13th! In this appropriately timed article, we update you on the latest in the legal battle over the copyrights to the classic horror film Friday the 13th.
September 19th is International Talk Like a Pirate Day. In terms of intellectual property, “pirating” refers to the unauthorized copying, distribution, or use of someone else's creative work without their permission, and often for personal or financial gain.
School names and their indicia are now a big source of revenue and local schools’ merchandise is found alongside college and pro sports merchandise. However, included with the increased visibility from the monetization and use of school names and mascots are trademark infringement risks.
IDENTIFYING, SECURING AND ADVANCING CREATIVITY®
