Survey Evidence Plays Key Role in Dairy Queen Corporation v. W.B. Mason Co., Inc.

By Sarah Butler, Healey Whitsett

The Situation

In March 2018, Dairy Queen Corp. sued W.B. Mason Co. in Minnesota federal court, claiming many of its thousands of US restaurants sell its “Blizzard” brand of bottled water alongside Dairy Queen’s Blizzard treats, potentially leading to consumer confusion.

NERA's Role

NERA experts Sarah Butler (who testified) and Healey Whitsett were retained by W.B. Mason to review three surveys—confusion, association, and dilution—and to assess their reliability and validity when evaluating whether consumers uniquely associated the word “blizzard” with Dairy Queen and whether Dairy Queen’s use of “blizzard” has concealed the ordinary meaning of the word.

Ms. Butler’s surveys attempted to replicate a real-world consumer purchasing scenario. 

The Result

All three of Ms. Butler’s surveys were unanimously credited by the court. The court found no confusion for consumers as to the source of the defendant’s “Blizzard® spring water,” whether it was associated with any other company, or whether W.B. Mason received permission from another company to offer the water.

The court also credited Ms. Butler’s confusion survey, as it tested whether associations exist with the word and brand “blizzard” without prompting respondents to indicate only whether they recognize “blizzard” as a brand of ice cream or frozen treat. Ms. Butler’s survey was not only relevant to evaluating whether consumers uniquely associated “blizzard” with Dairy Queen, but also whether Dairy Queen’s use of “blizzard” has eclipsed the ordinary meaning of the word.

Finally, the court credited the results of Ms. Butler’s dilution survey and found that they supported the finding that there was no likelihood of dilution in the use of the word “blizzard.” The court considered Ms. Butler’s dilution survey as relevant and helpful.

In June 2022, office supplier W.B. Mason won a resounding court victory over Dairy Queen, beating back allegations that its “Blizzard” brand of bottled water infringed the trademarks for Dairy Queen’s frozen treats of the same name.