General Law and Lawsuits

[chancery]

That's a nightmare.

[Tiredretiredlawyer]

https://www.stltoday.com/business/local ... 20969.html

Buffett’s Dairy Queen loses lawsuit over ‘Blizzard’ name

NEW YORK — A federal judge ruled that Dairy Queen cannot stop W.B. Mason Co. from selling “Blizzard” bottled spring water, the same name the unit of Warren Buffett’s Berkshire Hathaway Inc. uses for a popular ice cream product.

In a 217-page decision made public on Friday, U.S. District Judge Susan Richard Nelson found a lack of evidence that consumers were confused by the Blizzards or that W.B. Mason, an office products distributor, intended to confuse anyone.

Dairy Queen began using the Blizzard name in 1946 and has five Blizzard trademarks.

While acknowledging that W.B. Mason, which has two trademarks for Blizzard copy paper, was not a competitor, Dairy Queen said consumers might be confused because its U.S. restaurants sell bottled water.

But the judge said the products had “very different audience appeal,” and co-existed for 11 years despite evidence that Dairy Queen’s Blizzard had achieved “iconic” status, with U.S. sales reaching $1.1 billion in 2020.

► Show Spoiler

“Dairy Queen introduced no evidence of an actual association between the two products,” Nelson wrote. “If association were to occur, in all likelihood, it would have occurred by now.”

The St. Paul, Minnesota-based judge ruled after a 12-day non-jury trial with 30 witnesses last fall. Her decision is dated June 10 but was sealed for one week. The lawsuit began in March 2018.

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

[sugar magnolia]

Dairy Queen said consumers might be confused because its U.S. restaurants sell bottled water.

But they don't sell "Blizzard" bottled water. The ones around here sell Ozarka or Kentwood.

[keith]

I just cannot for the life of me understand why DQ is still in business after all these years.

I cannot abide the taste of their vaguely cool white plastic goop no matter how much brown imitation flavoured guar gum and vegetable oil they smear on it.

I used to go in once about every 18 months or so just to see if I was being unfair and if it really did have some redeeming value, but nope, it was always as bad or worse as I remembered.

I'll bet their water is tasty though.

[MN-Skeptic]

Mmmm... Blizzards.

Dairy Queen's headquarters are in my suburb of Minneapolis and you can't throw a stone without hitting one of their restaurants. According to the internet, there are 233 DQ restaurants in Minnesota. DQs just a thing you grow up with around here. I'm also a big fan of A&W drive-ins. They are the epitome of summertime for me.

[keith]

Mmmm... Blizzards.

Dairy Queen's headquarters are in my suburb of Minneapolis and you can't throw a stone without hitting one of their restaurants. According to the internet, there are 233 DQ restaurants in Minnesota. DQs just a thing you grow up with around here. I'm also a big fan of A&W drive-ins. They are the epitome of summertime for me.

A&W is tolerable. Their root beer is drinkable, but vastly inferior to Hires, which is why A&W bought them out and killed it off.

[MN-Skeptic]

Mmmm... Blizzards.

Dairy Queen's headquarters are in my suburb of Minneapolis and you can't throw a stone without hitting one of their restaurants. According to the internet, there are 233 DQ restaurants in Minnesota. DQs just a thing you grow up with around here. I'm also a big fan of A&W drive-ins. They are the epitome of summertime for me.

A&W is tolerable. Their root beer is drinkable, but vastly inferior to Hires, which is why A&W bought them out and killed it off.

One of my first words was "root beer." I like virtually all root beers except for what they called root beer at Bridgeman's Restaurants. Theirs was just strange.

When I was in high school I car-hopped at our local A&W. Although it wasn't on the menu, we knew what swamp water was - 1/2 root beer + 1/2 orange soda. I liked that too, but I haven't had that since high school.

[KickahaOta]

To be fair, Dairy Queen's hamburgers have recently swung from "meh even for fast food" to "entirely enjoyable", at least around here.

[sugar magnolia]

Barq's or nothing.

[Ben-Prime]

Barq's or nothing.

I'm torn. Barq's has a snappier taste which goes well with certain foods, but A&W is both mellower and non-caffeinated, so for other moods it pleases. Well, the diet version in both instances, 'course. I remember when the Embassy Club commissary in Dhaka got a case of Diet A&W and a case of Diet Dr. Pepper in as the last shipment before the ports shut down due to COVID in Spring 2020. I was one of only two people at post who drank Diet Dr. Pepper and the other had just evacuated post as 'non-essential', and I was one of only 3 who claimed to drink diet root beer and they both hated A&W. So I bought both cases.

It was like Christrmas in Springtime.

[Tiredretiredlawyer]

I almost went down the rabbit hole of being a root beer connoisseur. For about two years I tried different root beers. Barq's , Frost Top and A & W topped the list. There are many craft root beers just like craft beers. It's fun and interesting.

[raison de arizona]

Sarsaparilla.

[raison de arizona]

This is interesting, worth a read.

Twitter Successfully Quashes Sketchy Copyright Subpoena Over Billionaire’s Critic On Twitter

You may recall that, last fall, we wrote about a truly bizarre legal fight, in which a little-followed pseudonymous Twitter account @CallMeMoneyBags had tweeted out some images of a woman, suggesting a few times that the woman was the mistress of billionaire Brian Sheth. The account put out lots of tweets generally mocking people in the private equity space, including Sheth. Sometime after the tweets including those photos, Twitter received a DMCA subpoena from a company called Bayside Advisory, which had basically no presence online, claiming it held the copyrights in those photos and demanding identifying information on Money Bags.

The most obvious assumption was that Bayside was connected to Sheth and this was a way of finding out who this anonymous critic was. Twitter stepped in to the case to seek to quash the subpoena, noting that this did appear to be an attack on the right to anonymity — and also noting that this was an obvious fair use of the images. Bayside insists that it’s not connected at all to Sheth, but there’s a lot that’s sketchy about the organization (more on that shortly). The magistrate judge in the case first said that it couldn’t determine the fair use issue without hearing from Money Bags, and ordered Twitter to alert the user to show up in court. The Money Bags account appears to have been totally abandoned from about the date of the original subpoena, and it’s unclear if Twitter was able to contact the user, but the user didn’t show up in court at all, leading the court to order Twitter to reveal the information to Bayside.

Twitter, correctly, asked the court to reconsider, and the issue was handed over to district court judge Vince Chhabria, who held a hearing last month (which I viewed). It became clear quite quickly that Chhabria fully understood the issues at play here: he kept demanding that Bayside’s lawyer explain how any of this made sense, and even tried to find out if Bayside was abusing judicial process for the sake of harassing a critic of Sheth’s. Indeed, at one point, the judge demanded that Bayside’s lawyer explain who he spoke to at Bayside, and the lawyer tried not to answer before first only giving a last name, and then finally revealing a full name (Bert Kauffman).

https://www.techdirt.com/2022/06/21/twi ... n-twitter/

[Ben-Prime]

I almost went down the rabbit hole of being a root beer connoisseur. For about two years I tried different root beers. Barq's , Frost Top and A & W topped the list. There are many craft root beers just like craft beers. It's fun and interesting.

Virgil's is also good. They did a thing some years ago that was a limited edition holiday half-keg of root beer. I brought it to a party as a not-quite-joke, meant more for people to use it as a mixer for their alcohol. It was so smooth and creamy and delicious that a few folks took some of it straight and didn't mind the lack of alcohol in it.

Ever since, the folks from that social group have been "Where can we get one of those again?" I mean, this had to have been 13 or 14 years ago -- it was either the before my wedding or the year before that, and I remember that because my now-ex-wife and I wanted to find another half-keg of it for our very small quasi-elopement as a joke -- but I still get asked about it.

[keith]

Yeah, Virgil's is quite satisfactory and much better than A&W.

Stewart's is good too, but I suspect its a bit more 'boutique' ? I dunno where it originates or what its market range is.

There was a third brand that they used to have regularly for a while, but it wasn't as good and I think they recognized that their customers didn't want it either. Can't remember the brand name.

In Aussieland, the USA Foods import store gets both Virgil's and Stewart's kinda randomly. I only discovered either one after I realized that Hire's was no more and this was a possible alternative to A&W. Fortunately they also carry Vernor's Ginger Ale.

EDIT: just remembered that other brand: Souix City. I also just saw a report that Hire's brand is now Canadian (is that A&W?) and they are selling "Hire's and Vodka" cans. WTF is that about?

[northland10]

Off Topic

[humblescribe]

Not sure if this is the right place, but here goes:

_The Ohio State University recently won a trademark for the article, the. That's right, now one of the most common words in the English language is trademarked.

https://assets.bwbx.io/documents/users/ ... PcyS7Yo/v0

Really? Are there other Ohio State Universities around that use the indefinite article, an? I went to An Ohio State University, so that the reader or listener can tell the difference?

This is absurd.

I hope I don't get sued by this institution for trademark infringement. I used the word seven times, not counting appropriate references.

► Show Spoiler

I've hated Ohio State since I was a kid. I hated Woody Hayes. I hated the band. I hated the Horseshoe. I hated the way their fans hurl insults and food at fans of opposing teams, especially when they lost a football game. The recent ranking by US News (not that they are the sole decider) ranked OSU tied at #49. And I did not attend or graduate from a school in Ann Arbor or East Lansing.

OSU is just another Land Grant institution of higher education like all the others.

[Maybenaut]

I think it’s for only merchandizing. It doesn’t mean the Ohio State University owns “The” for all purposes. So, for example, if The University of Tennessee decided to sell orange t-shirts or ball caps solely with the word “The” emblazoned on them, they’d be in violation. But they can still market stuff that says “The University of Tennessee.”

[W. Kevin Vicklund]

I think it’s for only merchandizing. It doesn’t mean the Ohio State University owns “The” for all purposes. So, for example, if The University of Tennessee decided to sell orange t-shirts or ball caps solely with the word “The” emblazoned on them, they’d be in violation. But they can still market stuff that says “The University of Tennessee.”

I could easily be wrong, but I would think your second example as-is would be a violation of trademark*, since it is 1) competitive with that college to the south, and 2) used in the manner the trademark is used. However, one could have "The University of Tennessee is #1" without it being a violation, since "The" is being used informationally. Trademark law is complex, and it's easy to lose a trademark if you aren't diligent.

*However, it may be that "THE" is what is trademarked, and use of "The" doesn't violate the mark.

[Maybenaut]

I think it’s for only merchandizing. It doesn’t mean the Ohio State University owns “The” for all purposes. So, for example, if The University of Tennessee decided to sell orange t-shirts or ball caps solely with the word “The” emblazoned on them, they’d be in violation. But they can still market stuff that says “The University of Tennessee.”

I could easily be wrong, but I would think your second example as-is would be a violation of trademark*, since it is 1) competitive with that college to the south, and 2) used in the manner the trademark is used. However, one could have "The University of Tennessee is #1" without it being a violation, since "The" is being used informationally. Trademark law is complex, and it's easy to lose a trademark if you aren't diligent.

*However, it may be that "THE" is what is trademarked, and use of "The" doesn't violate the mark.

I don’t think that’s right. According to this article, the trademark covers

branded products such as t-shirts and caps that only feature the single word.

https://www.nbcnews.com/news/amp/rcna34857

[W. Kevin Vicklund]

Nothing in the trademark application says that the apparel will only include that particular word - I'd be careful at assuming the media has fully vetted the implications of the trademark. But again, I could easily be wrong. To my knowledge there's nothing that prevents you from having multiple trademarks on a given article.

[KickahaOta]

I am not a lawyer; this is not legal advice. May cause drowsiness; alcohol may intensify this effect.

This seems like a case where it's crucial to remember that the core of trademark law is consumer confusion. Without consumer confusion -- for example, confusion about the source of goods or services, or confusion about whether the holder of the trademark has authorized the use of the mark -- then there's no trademark violation. For example, this is why, when Pepsico puts out advertisements that claim that Pepsi is better than Coke, the ads can mention the Coke and Coca-Cola names, and even show Coke cans and delivery trucks. Nobody seeing the ad is going to be confused into thinking that Pepsico is the maker of Coke or that the Coca-cola Company is the maker of Pepsi; and nobody is going to think that the ad is coming from the Coca-cola Company rather than Pepsico.

The hypothetical "The University of Tennessee" shirt would create absolutely no consumer confusion. Nobody is going to think that a "The University of Tennessee" shirt is associated in any way with Ohio State University.

[keith]

I am not a lawyer; this is not legal advice. May cause drowsiness; alcohol may intensify this effect.

This seems like a case where it's crucial to remember that the core of trademark law is consumer confusion. Without consumer confusion -- for example, confusion about the source of goods or services, or confusion about whether the holder of the trademark has authorized the use of the mark -- then there's no trademark violation. For example, this is why, when Pepsico puts out advertisements that claim that Pepsi is better than Coke, the ads can mention the Coke and Coca-Cola names, and even show Coke cans and delivery trucks. Nobody seeing the ad is going to be confused into thinking that Pepsico is the maker of Coke or that the Coca-cola Company is the maker of Pepsi; and nobody is going to think that the ad is coming from the Coca-cola Company rather than Pepsico.

The hypothetical "The University of Tennessee" shirt would create absolutely no consumer confusion. Nobody is going to think that a "The University of Tennessee" shirt is associated in any way with Ohio State University.

But they MAY be confused if Oregon State sells "The OSU" t-shirts, no? Or Oklahoma State?

[KickahaOta]

It surprised me, and it may surprise you, that there are actually four live, approved trademarks for the simple word "THE" (not counting trademarks where the word has to be in a particular font, or as part of a particular graphic, etc.).

American BMX Corporation has two trademarks for "THE" -- one for helmets and goggles, the other for elbow and knee pads.

Jing Wang has "THE" trademarked for power chargers and electric cords.

And Ohio State has "THE" trademarked for college/sports clothing.

There's another "THE" trademark application, from Marc Jacobs, that's pending for bags/wallets/etc. sold in "contemporary fashion". That one hasn't been approved yet.

And there was a fifth "THE" word mark that was approved but has since died. A New York gallery had "THE" trademarked for art shows. They got the trademark in 2010, but lost it in 2017, because they didn't file the periodic form to say "yes, we're still using this".

There have also been abandoned or rejected applications for a "THE" word mark in the fields of batteries, bicycle clothing, hotels and restaurants, and (believe it or not) antibodies.

[Tiredretiredlawyer]

https://www.theguardian.com/football/20 ... mp;amp;amp

Diego Maradona: eight to go on trial in Argentina for homicide
Defendants named in judge’s report include football star’s three doctors, a psychiatrist and two nurses

Eight people who took care of the Argentinian football superstar Diego Maradona will be tried for homicide, according to a ruling released on Wednesday following an investigation into his death from cardiac arrest.

In the 236-page document seen by Reuters, the judge in charge of the case questioned “the behaviours – active or by omission – of each of the accused which led to and contributed to the realisation of the harmful result”.

The ruling said eight people including doctors, nurses and a psychologist who cared for Maradona at the time of his death in 2020 are accused of “simple homicide,” a serious charge that means taking a life with intent. A medical board appointed to investigate Maradona’s death concluded in 2021 that his medical team acted in an “inappropriate, deficient and reckless manner”.

Maradona was considered one of the greatest football players in history, though the diminutive player nicknamed “Pelusa” for his long mane of hair and “D10S” as a play on the Spanish word for “God” using the number on his shirt, battled drug and alcohol abuse for years.