U.S. judge lets Buffett's Dairy Queen sue W.B. Mason over 'Blizzard'

[January 11, 2019]   By Jonathan Stempel

(Reuters) - A federal judge in Minnesota ruled this week that Dairy Queen, owned by Warren Buffett's Berkshire Hathaway Inc, may pursue its lawsuit to stop W.B. Mason Co from selling "Blizzard" bottled spring water, the name it uses for a popular ice cream product.

U.S. District Judge Susan Richard Nelson rejected W.B. Mason's request to dismiss the trademark infringement case or move it to Massachusetts, where the office supplies distributor is based, because it sold no Blizzard water in Minnesota and lacked enough ties to the state.

The St. Paul-based judge wrote on Jan. 8 that a 1990 legal precedent gave her jurisdiction because W.B. Mason had registered with Minnesota authorities, despite recent Supreme Court decisions suggesting that greater ties might be needed.

Jason Kravitz, a lawyer for W.B. Mason, said on Thursday it was disappointed with the outcome and considered the 1990 precedent "no longer good law." He said the company will review its legal options.

Sheldon Klein, a lawyer for Dairy Queen, declined to comment. Berkshire, based in Omaha, Nebraska, has since 1998 owned Dairy Queen, whose full name is American Dairy Queen Corp.

Dairy Queen's Blizzard contains soft-serve ice cream that can be blended with fruit, nuts, M&Ms, Oreos and other mix-ins.

The Minneapolis-based company began using the Blizzard name in 1946, and has five Blizzard trademarks.

Berkshire Hathaway CEO Warren Buffett enjoys an ice cream treat from Dairy Queen before the Berkshire Hathaway annual meeting in Omaha, Nebraska, U.S. May 6, 2017. REUTERS/Rick Wilking

It claimed in its lawsuit last March 12 that the sale of Blizzard water, which began in 2010, threatened irreparable harm and customer confusion because many Dairy Queen stores also sold bottled water.

W.B. Mason sued three days later in Boston for a court order that there was no infringement. That case was later put on hold, and it is not immediately clear what will happen to it.

Known for eating habits that might give doctors heartburn, Buffett, 88, told Yahoo Finance in 2016 that at Dairy Queen he usually orders a small sundae for the ice cream, an extra large sundae for the topping, and combines them.

The case is American Dairy Queen Corp v. W.B. Mason Co, U.S. District Court, District of Minnesota, No. 18-00693.

(Reporting by Jonathan Stempel in New York)

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