What Do The Dairy Queen Blizzard And Herschel Walker Have In Common?
Depending on what part of the country you live in—and depending on whether, like me, you still print things out at the office—you may be familiar with “Blinding White Blizzard 78” copy paper. It is sold by the Boston-based office supply company, W.B. Mason. One thing led to another, one product led to another, and before you knew it, W.B. Mason was engaged in a fierce trademark battle with Dairy Queen. The case is interesting to me perhaps because of the ordinariness of the dispute. It is a classic trademark tractor-pull between two parties that would not give up. This is not Ford and Chevy trying to leapfrog each other in the electric vehicle pick-up truck market, as we saw play out in recent weeks. It certainly is not Coke and Pepsi. But this dispute asks whether a brand of copy paper evolving to a brand of bottled water will cause confusion or damage trademark rights of a company’s frozen dairy desserts.
Let me digress. Where did the W.B. Mason “Blizzard” trademark come from in the first place? I am able to link this all back to brand names and politics because there is some political background which ties into the origin of W.B. Mason’s “Blizzard” mark. But don’t doff your winter coat, because it’s going to be a bit of a trip to get there.
Perhaps only those of us who were living in Boston during the famous blizzard of ‘78 would immediately get the reference to W.B. Mason’s “Blinding White Blizzard ’78.” It was a true Storm of the Century which locked down the city of Boston for days, with National Guard posted on the city’s borders to regulate traffic in and out, while snow removal teams tried to bring things back to order. Gov. Michael Dukakis, who would later run unsuccessfully for president against George H.W. Bush, guided the city and the surrounding state as a sweater-clad leader, ubiquitous on Boston television for a week. This was novel at the time, unlike today where every government official is outfitted with a closet full of customized, logoed law enforcement or emergency services apparel, just right for the calamity of the day.
We dress our politicians with just the right apparel, helping to reinforce their brand. This politician is a government leader, and is in-charge.
U.S. politicians have used personal name recognition dating back to the 17th century leaders. It has never—ever—had the significance it has today. Politics is about branding. Combine personal brand and the powerful political brand and you have “Instant Candidate.” They are everywhere. Candidates like ex-football standout Herschel Walker are no longer a sideshow for the national electorate to follow. If not the norm, it is a new standard. Politicians not only brand themselves; now, they brand their brands, too. Campaign hats, shirts, buttons and paraphernalia are hardly new. The national archives at the Smithsonian can document this. But how about turning the red “Make America Great Again” hat into the acronym “MAGA,” which is now itself essentially a political movement. The unlimited power of words to evoke thoughts and emotions has never—for better or possibly for worse—played a bigger role than in current the American politics.
So, in this corner you have W.B. Mason, which bottles its own brand of water under the name “Blizzard” to deliver to its office supply customers. Those customers are stocking their refrigerators with W.B. Mason brand water because presumably it is less expensive than Poland Spring, Dasani, or Aquafina. So, now a brand name which has its origins in a legendary local event has morphed into a beverage product sold as an office supply.
In the other corner is the maker of one of America’s widely available frozen dairy concoctions, the Dairy Queen “Blizzard.” Blizzard—used for a frozen treat. Probably most people get the origin of the name.
As consumers are introduced to “Blizzard” on bottled water, are people going to start to think there is some association with the Dairy Queen “Blizzard?” That is the issue.
The issues are just what you might expect them to be. Here are a couple of interesting statements pulled from the court files:
The “Blizzard treat is available exclusively at Dairy Queen restaurants…[it] is an indulgent dessert marketed to families…” According to W.B. Mason, DQ “itself acknowledged it has no plans to extend Blizzard to other food or beverage products.”
Meanwhile, W.B. Mason says it sells its water through W.B. Mason employees to corporate accounts and/or through W.B. Mason’s website and catalog…W.B. Mason’s water is marketed and sold in bulk to businesses as part of W.B. Mason’s “Break Room” line…Typical audience(s) are professional office supply buyers—who place orders through W.B. Mason’s website, catalog, or salespeople.”
Those basic facts, as well as the existence of many other “Blizzard” uses included Blizzard skis, Blizzard lighting, BLIZZARD wines, the Green Bay Blizzard semi-professional football team, and Blizzard snow plows, all no doubt included in the court’s finding of no confusion across the board.
There is a simple but important lesson here, one which I have kept pounding away at over the years. You need to ask yourself whether some other enterprise, which has the same name or a similar one, might be offended. Do they have enough motivation to try to carve out exclusive rights so that they could argue there is a connection? When adopting a new mark, or extending an old mark to a new product, the owner always has to ask itself these questions. They are fundamental.
This is what the court in Minnesota was asked to decide in the case. What they found was: Dairy Queen did not prove likely confusion.
How exactly is this Blizzard case like Herschel Walker or any other politician? When individuals running for office align themselves with an issue or a policy, that can quickly become their identity. So, the politician, just like the brand owner, has to decide whether the risk of being identified with an issue is worth the reward. Even those politicians wearing police garments, sad to say, must consider whether associating themselves with law enforcement agencies is a good move politically. Will that become their brand, and more critically, will that become the image that their adversaries can continually associate with them?
The impact of social media, piled on top of the 24-hour news cycle we have been living with for the last few decades, makes it impossible for political brands to completely escape any one trait or flavor of policy. I don’t know if W.B. Mason ever even considered the Dairy Queen Blizzard when it adopted its mark (though I am sure that issue was addressed in court by the lawyers on both sides). But, as an office supply company extends its paper brand name to bottled water, it must try to anticipate problems down the road. A political brand, for exactly the same reasons, must look at every association and realize that consumers (voters) may find any one trait to be the only one that really matters. Otherwise, every other position can get snowed under by association with that political brand. Consider if you think people will associate you with the wrong brand, then ask the second question: even if they shouldn’t, might they?