W. B. Mason Co., Inc. v. American Dairy Queen Corporation (18-cv-10488).

Office supply company W. B. Mason filed a declaratory judgment action against Dairy Queen, seeking the right to continue use of the mark BLIZZARD for paper products and spring water. W. B. Mason registered the marks BLINDING WHITE BLIZZARD 78 COPY PAPER and BLIZZARD BLINDING WHITE COPY PAPER, and sought to register the marks BLIZZARD SPRING WATER and WHO BUT W.B. MASON’S BLIZZARD SPRING WATER; the latter two applications were opposed by Dairy Queen.  Settlement negotiations ensued.  W. B. Mason asserts that recently, after lulling W. B. Mason to hold off on further action while his client was out of town, Dairy Queen’s attorneys filed suit in Minnesota (18-cv-00693) claiming trademark infringement and dilution.  In light of this, W. B. Mason asserts that the “first-to-file” rule should not apply or, alternatively, an exception to the rule should control, and the case should proceed in Massachusetts rather than Minnesota.  The case has been assigned to Judge Gorton.