July 2006 Volume 28 Number 2
Blizzard Entertainment and Blizzard Records both may continue to use the “Blizzard” trademark, even though they are unrelated companies and both sell recorded music. That is the Solomon-like decision reached by federal District Judge Elfvin, following lengthy proceedings that included summary judgment motions (ELR 27:1:13) and a three-day trial.
The case revolved around the hotly-contested question of which company used the “Blizzard” mark first in connection with the sale of music. Blizzard Records began using the mark in 1986 – well before Blizzard Entertainment did. But Judge Elfvin found that the record company had abandoned the mark in 1987 and didn’t begin using it again until 1999.
Blizzard Entertainment – the successful computer game company – registered the “Blizzard” mark in 1994, but only for computer and video games, so that, by itself, did not help the company. On the other hand, in 1995, Blizzard Entertainment did begin selling recordings of the music from its game soundtracks, using its “Blizzard” mark.
Since 1995 was before 1999, Blizzard Entertainment used the mark for music before Blizzard Records did. And that meant that Blizzard Entertainment’s use of the mark does not violate any trademark rights that Blizzard Records may have.
What’s more, Blizzard Records’ use of “Blizzard” to sell music does not infringe Blizzard Entertainment’s trademark rights either, Judge Elfvin held. It doesn’t because Blizzard Entertainment itself introduced evidence proving that its customers are “brand savvy,” and thus there is no likelihood that they would be confused about the source of recordings bearing the “Blizzard” trademark.
Mele v. Davidson & Associates, Inc., 2006 WL 1644693, 2006 U.S.Dist.LEXIS 39054 (W.D.N.Y. 2006)