Wendy's is suing the United Dairy Farmers, accusing them of infringing on its Frosty trademark. But this isn't just a fast-food chain fighting a farmers group. The United Dairy Farmers owns and runs their own chain of convenience stores, in addition to selling their products through various grocery stores.
"Frosty is one of our original trademark products, dating back to 1969," Wendy's spokesman Denny Lynch told The Columbus Dispatch. "We are taking the necessary steps to protect this iconic brand and to avoid the inevitable confusion by consumers." Wendy's Frosty—a cross between a milkshake and soft-serve ice cream—was one of the company's first five menu items. Wendy's called the UDF products "a complete knock-off" of its Frosty dessert.
In the lawsuit filed in federal court in Ohio, it described how the Frosty was created. "One of the first items on the Wendy's menu was the FROSTY dessert—and it continues to be one of the best known and most popular items among Wendy's customers. Dave Thomas came up with the idea for the Frosty dessert. He loved thick milkshakes growing up and wanted a dessert on the menu that was so thick that you had to eat it with a spoon," the filing said.
The filing specified what Wendy's argued the United Dairy Farmers has done: "In an effort to exploit and improperly trade upon the famous Frosty brand, Defendant 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."
In terms of the confusion for the look of the product, yes, the UDF is using similar red and yellow colors. But the design of the packaging is quite different and not especially confusing. That said, a quick note to the UDF: "Really? You're going to argue that you were not trying to rip off Frosty when you chose to call your dessert Frosties?" The packaging is arguable, but it's entirely unreasonable to say that Wendy's all but won this case the instant the UDF chose that name.
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