Seeking to protect its 44-year-old Frosties brand, Wendy's International, Inc. claims another company is unlawfully emulating the famous dessert.United Dairy Farmers, Inc. is infringing on the Frosty trademark and red and yellow trade dress, Wendy's alleges in a lawsuit that seeks monetary damages and injunctive relief.
Wendy's claims Cincinnati, Ohio-based United Dairy Farmers (UDF) "has deliberately and unlawfully appropriated" its intellectual property rights by selling its dairy dessert products under the marks "Frosties" and "Frosty Malts." Some of the products also contain a red and yellow packaging trade dress that is "confusingly similar" to the Wendy's packaging, the complaint alleges.
As one of the original and most popular items on the Wendy's menu, the Frosty—"a cross between a milkshake and soft-serve ice cream"—is responsible for sales exceeding tens of millions of dollars, according to Wendy's. Since the chocolate dessert was introduced more than four decades ago, the Frosty product line has been expanded to include vanilla dessert, shakes and cones.
Wendy's and its subsidiary Oldemark LLC filed the complaint in an Ohio federal court on June 21.
United Dairy Farmers did not respond Monday to a request for comment on the lawsuit. As of July 1, the company had not filed an answer to the complaint, according to electronic public records.
Wendy's was founded in 1969 by Dave Thomas. It has grown from just one restaurant in Columbus, Ohio to more than 5,800 franchises and company-owned restaurants in the United States.
