A federal judge has ruled that Dairy Queen cannot stop WB Mason Co from selling “Blizzard” bottled spring water, named after Warren Buffett’s Berkshire Hathaway Inc. unit. BRKa.N uses for a popular ice cream product.
In a 217-page ruling released Friday, U.S. District Judge Susan Richard Nelson found a lack of evidence that consumers were confused by Blizzards or that WB Mason, a distributor of office products, intended to confuse anyone.
Dairy Queen began using the Blizzard name in 1946 and owns five Blizzard brands.
While acknowledging that WB Mason, which owns two trademarks for Blizzard copy paper, was not a competitor, Dairy Queen said consumers might be confused. because it is American restaurants sell bottled water.
But the judge said the products had “a very different appeal to the public” and co-existed for 11 years despite evidence that Dairy Queen’s Blizzard had achieved “iconic” status, with sales in the United States reaching 1.1 billion dollars in 2020.
“Dairy Queen has presented no evidence of an actual association between the two products,” Nelson wrote. “If the association were to occur, in all likelihood it would have already occurred.”
The St. Paul, Minnesota-based judge ruled after a 12-day non-jury trial with 30 witnesses last fall. His decision is dated June 10 but has been sealed for a week. The trial began in March 2018.
Judge allows Berkshire Hathaway’s Dairy Queen to sue ‘Blizzard’ trademark
In a statement, Dairy Queen said it was disappointed and was considering whether to appeal and would “vigorously enforce our rights if necessary” to protect franchisees.
Jason Kravitz, a partner at Nixon Peabody representing WB Mason, in a statement called the decision “an extremely satisfying and hard-fought victory.”
Dairy Queen’s Blizzard contains soft serve ice cream that can be mixed with fruit, nuts, M&Ms, Oreos and other mixes.
Berkshire bought Bloomington, Minnesota-based Dairy Queen in 1998. WB Mason is based in Brockton, Massachusetts.
The case is American Dairy Queen Corp v. WB Mason Co, US District Court, District of Minnesota, No. 18-00693.
Interested in Prosecutions?
Receive automatic alerts for this topic.