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Endless Sno-ball Battle Comes Again to Fifth Circuit

By Casey C. Sullivan, Esq. on August 19, 2016 | Last updated on March 21, 2019

A ten-year long battle over sno-balls, those frozen cones of shaved ice and sugary syrup, made its way into the Fifth Circuit recently, and it wasn't for the first time. The legal battle over sno-ball syrup flavors and trademarks has brought a pair of Louisiana sno-ball purveyors, SnoWizard and Southern Snow, through just about every court imaginable: Louisiana state court, federal district court, the Patent and Trademark Office, the Federal Circuit, and the Fifth Circuit, multiple times.

In the Fifth's most recent ruling in the long-running dispute, the circuit found that Southern Snow's claims that its competitors were involved in a criminal racket and violating unfair trade practices laws were barred by res judicata.

Summer Is for Sno-Balls and Service of Process

The sno-ball litigation has gone on so long that it's basically just another sign of summer in the South. Here's how Judge Jennifer Walker Elrod sets the scene in the opening paragraph of her decision:

As the seasons turn from spring to summer in New Orleans, locals know to expect familiar changes. The days get longer. The temperature rises. And in the humid warmth of summer, long lines grow outside the most popular sno-ball shops. The parties in this case have come to expect another predictable event with the changing seasons -- a visit from a process server setting off a new round of litigation. What began as a flurry of cease-and-desist letters between the companies has turned into a blizzard of patent, trademark, and antitrust litigation. Each party has attempted to use the courts to freeze the other out of the sno-ball market.

For five years, from 2003 to 2008, SnoWizard acquired patents and trademark rights connected to its business, then "used these to conjure up an avalanche of lawsuits against their competitors." That litigation has led to a series of decisions and settlements, spread out over many years and many courts. In one decision, a district court dismissed 175 of SnoWizard's claims. In another, the Federal Circuit found that only SnoWizard could use flavors such as "Cajun red hot" and "white chocolate and chips" sno-balls.

A Criminal Sno-Ball Racket?

In the most recent litigation, Southern Snow alleged a "full menu of claims" against its frosty nemesis, SnoWizard: that SnoWizard, its owner and attorneys, had violated RICO by engaging in "a criminal racket based on obstruction of justice"; that SnoWizard had violated federal and state antitrust laws through sham litigation; that SnoWizard had fraudulently trademarked syrup flavors; that SnoWizard's attorneys were co-conspirators in these violations, and more.

Neither the Fifth Circuit nor the district court were too willing to indulge in these sticky accusations, however. The district court threw out the claims under Rule 12(b)(6). The Fifth Circuit upheld that ruling, finding most of SnoWizard's claims barred by res judicata. After all, "plaintiffs are only allowed one bite at the sno-ball."

Will this ruling finally melt away the disagreements between the two sno-ball companies? We doubt it, but the Fifth Circuit certainly thinks this sno-ball fight has gone on long enough.

"The parties could have shaved down the overwhelming costs in time, expense, and scarce judicial resources that this litigation has consumed if they could have abandoned their unrelenting desire to crush the opposition," the court wrote.

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