Wendy's frosty over trademark infringement

by Eric Schroeder
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DUBLIN, OHIO — Wendy’s International, Inc. and Oldemark L.L.C. have filed a lawsuit in the U.S. District Court for the Southern District of Ohio Eastern Division alleging United Dairy Farmers, Inc. has infringed on its Frosty trademark and distinctive yellow and red colors used to market and sell its frozen dairy desserts.
Wendy’s said it has used the Frosty trademark in connection with dairy dessert products since 1969, and sales of products identified by the trademark have exceeded “tens of millions of dollars.”

“The strength and recognition of the famous Wendy’s trade dress and Frosty trademark have led others to try and imitate them to capitalize on the goodwill associated with both marks,” Wendy’s noted in the June 21 lawsuit. “In an effort to exploit and improperly trade upon the famous Frosty brand, (United Dairy Farmers) 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.”

As part of the lawsuit, Wendy’s has asked the court to cease and desist United Dairy’ Farmers’ sale of the products and force the company to destroy its packaging. Wendy’s also is seeking compensatory and punitive damages.

Cincinnati-based United Dairy Farmers, which has offered Frosties and Frosty Malts at grocery stores and convenience stores since 2005, declined to comment on the lawsuit.

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