A federal judge in St. Paul ruled against American Dairy Queen Corp., rejecting its accusation that a Massachusetts company wrongfully used the "Blizzard" name for bottled spring water.
Dairy Queen sued W.B. Mason Co. of Brockton, Mass., alleging its bottled spring water bearing the Blizzard name was a trademark infringement and unfair competition.
U.S. District Judge Susan Richard Nelson, in a written decision issued earlier this month, disagreed and also denied a claim for damages by Dairy Queen, based in Bloomington. The federal judge oversaw a trial last fall in St. Paul before issuing the verdict.
"Dairy Queen has failed to prove, by a preponderance of the evidence, all of the elements of its claims for trademark infringement, trademark dilution, unfair competition by false designation of origin, as well as common law unfair competition and deceptive trade practices under Minnesota law," the judge wrote.
In a statement, Dairy Queen, which is reviewing the decision and the right to appeal, said it "must take action to protect our famous brand from other parties who try to use Blizzard with food and beverage products. For our company and all of our independent franchise owners, a majority of whom are small-business owners, we will continue to vigorously enforce our rights when necessary."
Trademarks for Dairy Queen's Blizzard date to 1946, according to the lawsuit. The soft-serve treat blended with fruit, nuts, candies or other flavorings is required at all locations and the company notes that its stores also sell water.
Dairy Queen's lawsuit asked that the Blizzard spring water be removed from store shelves, that all related marketing materials be destroyed, and sought unspecified damages to include profit from the spring water sales.
W.B. Mason bills itself as the second largest privately owned workplace products dealer in the U.S. and sells some food and beverage items. In 2003, W.B. Mason launched its Blizzard brand for white copy paper and expanded its use in 2010 to spring water, court records say.
Attorneys for W.B. Mason said in court documents that Dairy Queen has not been able to show even one instance of actual confusion after 188 million sales of "allegedly infringing bottles of water."
They alleged that Dairy Queen only became aware of the Blizzard spring water in 2017 after W.B. Mason had filed trademark applications with the federal government.
American Dairy Queen Corp. is a unit of International Dairy Queen Inc., a subsidiary of Berkshire Hathaway Inc. run by Warren Buffett. International Dairy Queen and its units service a system of more than 7,000 locations.