Jessie Levy lets her dog, Mando, take a bite of shaved ice as she waits for her snowball at Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Patience and a sweet tooth on a warm day as people wait in line at Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. Isaac Schnieders, right, works behind the counter. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Waiting patiently in the doorway for a snowball at Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Hansen's Sno-Bliz & Sweetshop, as depicted in a watercolor by artist Sylvia Corban and reproduced on bric-a-brac such as place mats and wall hangings by Caroline's Treasures of Mobile, Alabama. Hansen's is suing Caroline's Treasures and its owner for trademark infringement. (The image is a screenshot of an image attached to its lawsuit, filed Apr 15, 2022).
Some of the original hardware, top, used to make snowballs at Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
No there isn't a chicken and rice or lamb and rice flavored snowball syrup for dogs. At least not yet. Jessie Levy lets her dog, Mando, take a bite of plain shaved ice at Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. They were cooling off after playing as a nearby park. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Since she is a diabetic Kathy Schultz came prepared with a bag of her insulin so that she could still enjoy a snowball from Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. She joked that if she could she'd eat a snowball a day, but it wouldn't be good for her body. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Friends Kathy Schultz, left, and Cindy Burst Shipp sit outside Hansen's Sno-Bliz eating snowballs in New Orleans on Tuesday, April 19, 2022. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Old photos and drawings on the wall inside Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Young and old partake in snowballs at Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. Amy Bradshaw, right, gives her daughter, Anna, eight months, a taste of her first snowball. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Morning glory flowers bloom on a fence behind Hansen's Sno-Bliz as people eat snowballs in New Orleans on Tuesday, April 19, 2022. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Fine snowball dining outside Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Anna Bradshaw, eight months, gets a taste of her first snowball at Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. Her first snowball flavor? According to her mom Amy, "nectar cream of course because there is no better flavor." (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Jessie Levy lets her dog, Mando, take a bite of shaved ice as she waits for her snowball at Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Waiting patiently in the doorway for a snowball at Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
No there isn't a chicken and rice or lamb and rice flavored snowball syrup for dogs. At least not yet. Jessie Levy lets her dog, Mando, take a bite of plain shaved ice at Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. They were cooling off after playing as a nearby park. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Friends Kathy Schultz, left, and Cindy Burst Shipp sit outside Hansen's Sno-Bliz eating snowballs in New Orleans on Tuesday, April 19, 2022. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Young and old partake in snowballs at Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. Amy Bradshaw, right, gives her daughter, Anna, eight months, a taste of her first snowball. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Morning glory flowers bloom on a fence behind Hansen's Sno-Bliz as people eat snowballs in New Orleans on Tuesday, April 19, 2022. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Hansen's Sno-Bliz & Sweetshop, the Uptown mainstay which has a claim to being the oldest snowball purveyor in the United States, has honed its reputation in New Orleans and beyond by developing a unique slate of family recipes over eight decades.
Now, the company is suing to protect its brand, alleging that an Alabama-based online marketer is illegally profiting by selling merchandise depicting Hansen's quaint corner store, which has stood at the intersection of Tchoupitoulas and Bordeaux streets since 1939.
Anna Bradshaw, eight months, gets a taste of her first snowball at Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. Her first snowball flavor? According to her mom Amy, "nectar cream of course because there is no better flavor." (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
In the complaint, filed last week in U.S. District Court for the Eastern District of Louisiana, Hansen's asserts that Ronald Rutherford, owner of Caroline's Treasures of Mobile, agreed six years ago to cease selling goods bearing Hansen's motifs.
But he's at it again, the suit claims, and Hansen's wants a court to force them to stop.
An array of Caroline's Treasures products are currently available via Amazon and other third-party sellers, including cutting boards at $37.50 and a door mat for $32.29, all depicting the same view of Hansen's shop.
Ashley Hansen, the current owner, declined to comment further citing the advice of her attorney. But the lawsuit details the history of the business and the reputation it says is at risk because of the alleged trademark infringement.
The shop was started by Ashley's grandfather, Ernest Hansen, after he invented a machine in the mid-1930s that would produce especially fine shaved ice. Ernest ran it with his wife Mary until early this century when Ashley, who had worked there since her teens, started running it and later bought the shop after her grandparents had passed away.
Some of the original hardware, top, used to make snowballs at Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
"On warm days in New Orleans, customers can be seen in very long lines waiting to purchase (Hansen's Sno-Bliz) products," the lawsuit says, adding that the shop is perhaps the city's best known maker of snowballs. In 2014, Hansen's was named by the James Beard Foundation as one of its "America's Classics," an honor given to food and beverage makers that have "a timeless appeal" and are beloved in their region.
"It is clear that (Caroline's Treasures) is attempting to benefit from the fame and goodwill (Hansen's) has obtained after more than eighty years in business," Hansen's complaint asserts.
Hansen's Sno-Bliz & Sweetshop, as depicted in a watercolor by artist Sylvia Corban and reproduced on bric-a-brac such as place mats and wall hangings by Caroline's Treasures of Mobile, Alabama. Hansen's is suing Caroline's Treasures and its owner for trademark infringement. (The image is a screenshot of an image attached to its lawsuit, filed Apr 15, 2022).
Indeed, Hansen's has its own merchandise for sale in the shop and online. T-shirts marking the shop's 80th anniversary in 2019 go for $25 each. Embroidered hats and beanies are the same price, while onesies for toddlers can be had for $18.
The lawsuit is seeking unspecified damages.
Since she is a diabetic Kathy Schultz came prepared with a bag of her insulin so that she could still enjoy a snowball from Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. She joked that if she could she'd eat a snowball a day, but it wouldn't be good for her body. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Rutherford said in a phone interview that he was unaware of the lawsuit and hadn't been making any Hansen's-related products since he agreed to stop six years ago. However, he said, as a wholesaler he doesn't have control over third parties who might still be selling the merchandise online.
"We discontinued them back then," he said, "But I have other vendors and I have no control over them."
The lawsuit says that the products have turned up on the websites of Sears, Ebay, Houzz, and Walmart, as well as on Amazon.
Patience and a sweet tooth on a warm day as people wait in line at Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. Isaac Schnieders, right, works behind the counter. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
Though he had apologized and promised to stop selling Hansen's products, Rutherford did note in his response to the 2016 "cease and desist" order that the items he was selling were, in fact, reproductions of an original watercolor painting by artist Sylvia Corban.
The store licenses and sells Corban's work through its website.
One well-established defense against trademark infringement is "fair use" depiction in works of art, according to LaShel Shaw, a Salt Lake City-based lawyer who has written extensively on the subject.
A recent example was a court decision in favor of the makers of Empire, a television series set at a fictional New York hip hop record label. The court found in favor of series' creator, Fox Television, and against a real-life San Francisco-based record label called Empire Distribution, determining that Fox could keep using the word "Empire" as it was protected by free speech.
Old photos and drawings on the wall inside Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
"Art is in eye of the beholder and the 'fair use' defense is there because of the first amendment," Shaw said. "It is a baked-in backstop to make sure that intellectual property rights are not pushed so far as to inhibit free speech."
However, she said, the law is murkier when it comes to a vendor selling goods depicting someone else's art, which itself contains the protected trademark of another vendor.
Fine snowball dining outside Hansen's Sno-Bliz in New Orleans on Tuesday, April 19, 2022. (Photo by Chris Granger | The Times-Picayune | The New Orleans Advocate)
In other words, there is a clear defense for an artist who depicts, for example, a gas station that might have a vending machine selling Coca-Cola in the background. But it is less clear if someone is selling reproductions of that original work on mass-produced knickknacks.
Shaw also said that Rutherford's claim to have no control over third party online sellers is untested water.
"It's a fascinating and unusual case in two different respects," said Shaw. "It could be an interesting case if it goes anywhere; or at least it would make a great law school exam question."
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