March 23, 2018

March! What a month! (Part 1)

No, I'm not going to write about MARCH MADNESS® that annual ritual of college basketball and the NCAA® basketball tournament.

Rather, I'm writing about the crazy winter weather which battered the East Coast with four Nor'Easter storms dumping record snowfall this March. After last week's Storm Skylar and this week's Storm Toby, some parts of the East Coast received over four feet of snow. It's a regular blizzard.

Speaking of blizzards, have you seen the complaint that Dairy Queen filed in federal district court in Minnesota alleging infringement of its BLIZZARD® mark? According to Dairy Queen's complaint, "One of the most popular and well-known menu items at DAIRY QUEEN® restaurants is the BLIZZARD® treat, consisting of soft-serve ice cream blended with fruit, nuts, candy pieces, and other flavorings. The BLIZZARD® treat is a required core menu item at all DAIRY QUEEN® locations. For those of you not in the know, it looks like this:

Beres Blizzard

Dairy Queen has five incontestable registrations for BLIZZARD claiming a first use date back to 1946:

Beres Blizzardchart

It is fair to say Dairy Queen is very protective of its BLIZZARD mark. Which is why it did not take too kindly to W.B. Mason selling bottled spring water under its own BLIZZARD mark:

Beres Blizzardspringwater

In the fall of 2016, W.B. Mason filed trademark applications with the USPTO containing "blizzard" as part of its mark for use in connection with spring water. Check out application serial nos. 87/210,712 and 876/210,633 both filed October 20, 2016 and claiming a first use date of September 15, 2015.

According to the complaint, upon learning of W.B. Mason's applications, trademark counsel for Dairy Queen contacted the Applicant and requested the applications be withdrawn. W.B. Mason declined and the applications were passed for publication. Dairy Queen promptly opposed, alleging a likelihood of confusion between W.B. Mason's use and Dairy Queen's use of "blizzard." See TTAB Opposition No. 91235851.

When W.B. Mason continued using its mark, Dairy Queen filed the trademark infringement action in its home court in Minnesota. Like I said, March! What a month.

We will continue to monitor this case and give you updates on how both the TTAB and the District of Minnesota address the likelihood of confusion issue presented by this dispute.

In the meantime, stayed tuned for next week where we will explore more of this crazy March weather and the four Nor'Easters.