Wendy’s International Inc. has filed a trademark suit against the United Dairy Farmers, Inc. in the Southern District in connection with its FROSTY trademark. In the lawsuit, Wendy’s alleges that, “In an effort to exploit and improperly trade upon the famous Frosty brand, [United Dairy Farmers] has deliberately and unlawfully appropriated plaintiffs’ intellectual property rights through its sale of dairy dessert products under the marks ‘Frosties’ and ‘Frosty Malts,’ some of which also use a confusingly similar red and yellow packaging trade dress to that used by plaintiffs.”
Wendy’s does not appear to have a federal registration for its FROSTY trademark and its first-alleged claims are for trademark dilution with the subsequent clams for infringement and unfair competition. Dilution claims are most often used to protect famous marks against non-competing or unrelated products.
Please the Complaint here.
On March 2nd, Squirrel Brand Holdings, L.P. filed a suit for trademark infringement in the Eastern District of Texas accusing Walgreens of selling, under its private label NICE! brand, “Creme Brûlée Almonds” that infringe on Squirrel Brand’s federally-registered trademark for that term.
According to Squirrel Brand’s website, “creme brûlée almonds” are “bite-sized substitutes for the famous dessert … made by toasting the finest California almonds and adding a luscious sweet creme flavor” and then “[f]inished with a thin layer of caramelized sugar.” Squirrel Brand’s mark will no doubt be attacked as being descriptive even though it was registered on the principal register (as of 2/21/2012) pursuant to section 2(f) as having acquired distinctiveness by having been in exclusive and continuous use for more than five years. This will be an interesting example of whether a clearly descriptive trademark that has only just been registered under section 2(f) can withstand heightened scrutiny in federal court.