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Small competitor licks Dairy Queen in court

Dairy Queen has lost a bid to stop a Southern California rival from selling a frozen yogurt with a name similar to its top-selling Blizzard.
/ Source: Reuters

Dairy Queen has lost a bid to stop a Southern California rival from selling a frozen yogurt with a name similar to its top-selling Blizzard.

U.S. District Judge R. Gary Klausner denied Dairy Queen's request for a preliminary injunction to stop Yogubliz Inc, which operates stores in the Los Angeles area and in Las Vegas, from selling its Blizzberry and Blizz Frozen Yogurt products.

Dairy Queen had alleged the products could cause confusion among customers with the Blizzard, a soft-serve ice cream also blended with candy, cookie pieces and other mix-ins.

But Klausner concluded in a September 3 order that while Blizz and Blizzard "do sound alike," the Blizz and Blizzard marks are "relatively dissimilar."

He also said Dairy Queen was unlikely to succeed on the merits of any claims against its smaller rival, including trademark infringement and unfair competition.

"Products often are marketed under names that are nonsense or invented words," he wrote. "Thus, like Pez, Pringles, or a host of other brand names, it is unclear that Blizz has any independent meaning aside from the product it is attached to."

Stephen Abraham, a lawyer for Yogubliz, said he is "thrilled" with the ruling. "A preliminary injunction is difficult to get," he said. "You have to convince the court of irreparable and immediate injury, and they simply didn't.'

David Steinberg, a lawyer for Dairy Queen, did not immediately return calls seeking comment.

Dairy Queen has called Blizzard its "most popular and well-known" menu item, with more than $750 million of annual sales. It said it has sold more than 1.5 billion Blizzard treats since 1985.

Yogubliz began operating stores in 2009. The company is based in Downey, California. Dairy Queen is based in Minneapolis, and Berkshire is based in Omaha, Nebraska.

The case is Yogubliz Inc v. American Dairy Queen Corp, U.S. District Court, Central District of California, No. 10-03677.