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Fri, 29 Oct 2021

Court Case Brought By Dairy Queen Over 'Blizzard' Trademark Infringement On 'Blizzard Water' Begins And Is Dumb
Furnished content.


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.

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