Is a Wizzzard too much like a Blizzard? Dairy Queen’s parent company says yes and is suing the owners of a San Augustine-based business that closed several franchises and reopened them under the name Dairy Mark.
American Dairy Queen Corp. filed suit last week against Liepman Restaurants Inc. and owners Mark and Teresa Liepman, seeking an award of more than $640,000 in lost profits, late fees and liquidated damages.
The suit claims the Liepmans failed to remove company trademarks from at least eight former Dairy Queen locations in Texas, Louisiana and Oklahoma after closing the locations following a bankruptcy filing. The San Augustine Dairy Queen closed and later re-opened as Dairy Mark. It is not specifically mentioned in the suit. Dairy Queen also claims the Liepmans violated a non-compete provision of their contract by converting several of those locations into businesses that also serve hamburgers and soft serve treats.
One of the menu items mentioned in the suit is called the Wizzzard — a mix of soft serve ice cream and M&Ms, Oreo pieces or other delectables that Dairy Queen claims is “confusingly and deceptively similar to” the Dairy Queen Blizzard.
The restaurant name Dairy Mark is also deceptive, Dairy Queen lawyers say in the suit.
“Defendants’ blatant trademark infringement and failure to comply with the post-termination obligations in the operating agreements is causing irreparable harm and damage,” attorney Brad Jackson wrote in the filing.
The court filing includes 29 exhibits including lists of all Dairy Queen’s trademarks and photos of various Dairy Mark locations. One series of photos shows a Dairy Queen investigator with a soft serve ice cream cone and a Wizzzard served in a Dixie Cup with the iconic teal, purple and white sketch pattern.
“Dairy Queen Marks,” which is similar to the new restaurant name, is also corporate jargon for trademarks owned by the American Dairy Queen Corp., according to the lawsuit.
A civil complaint only tells one side of a case. The Liepmans have yet to file a formal response in federal court. Online court records do not list an attorney for the defendants.