Blizzard battle between local 'shave ice' truck and Dairy Queen

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by Kevin Reece / KHOU 11 News

khou.com

Posted on July 1, 2014 at 11:27 PM

Updated Tuesday, Jul 1 at 11:28 PM

HOUSTON -- Two Houston brothers who sell shave ice from their $35,000 food truck the "Texas Blizzard" are now in a trademark fight with a multi-national, multi-billion dollar company that says the "blizzard" belongs to them.

Richard and Victor Fernandez started Texas Blizzard Shave Ice three years ago and, in their bright blue food truck, are frequent participants at Houston-area festivals. But they can usually be found in the parking lot of Fitzgerald's at the corner of Studewood and White Oak in the Heights.

"We were just thinking of ways how we could entice customers with our name by bringing a very ice cold-like experience to them without them having to remember how hot it is here in Houston," said Richard Fernandez the younger of the Fernandez entrepreneurs.

But shortly after a recent appearance on the Culture Map Houston website, where Texas Blizzard was voted the best snow cones in Houston, they found it odd one day that a man in a business suit was in the parking lot taking a picture of their food truck.

"We saw this guy come in, take a photo, and then walk away," said Victor Fernandez. "And he was wearing a nice suit and tie, like that's weird."

Maybe not that weird, and perhaps not a coincidence, that two weeks later on June 16th they received a two-page cease and desist letter from the office of the legal counsel at Diary Queen headquarters in Minneapolis. Founded in the 1940's and now with over 6,000 locations in the United States, Canada and 18 countries, DQ has been making its own Blizzard since 1985.

"And they said we have to drop the word Blizzard from our name within 30 days or they will take action against us," said Victor.

"I'm shocked when I heard that," added his brother Richard.

"I mean I get it. But they're just a small little snow cone place," said customer Gabi Gonzales who visited the Texas Blizzard with her two sisters to get free red, white, and blue snow cones during the U.S-Belgium World Cup Soccer match. "I don't think they're much competition for them really."

KHOU 11 News contacted a Dairy Queen spokesperson at company headquarters in Minneapolis, but did not receive a response Tuesday night.

The brothers say they have responded to the initial Dairy Queen letter and are waiting for the company's reaction. They are hoping for a compromise.

"We hope they let us continue conducting business the way it is," said Richard. "We're just trying to come up with the best scenario for both of us."

But Victor says they have also been told by their own lawyer that the initial rounds of a trademark fight might cost them up to $100,000 in legal fees - money they just don't have.

"And it's just something we can't afford so it's easier for me to just change the name and let it go," he said.

Dairy Queen did compromise in 2010 with a company named Blizz Frozen Yogurt. DQ originally called the company's Blizz Yogurt a violation of DQ's trademark. Blizz Frozen Yogurt was allowed to continue using the "blizz" name.

For now the Fernandez brothers continue selling their shave ice while they wait to see if DQ will offer them a compromise or force them to de-Blizzard that bright blue truck.

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