Spring 2005, Vol. 37, No. 1
The Frozen Sucker War: Good Humor v. Popsicle, Part 2
By Jefferson M. Moak
|Good Humor Corporation submitted this advertisement as an exhibit in their case against Popsicle (Equity Case #953). (Records of District Courts of the United States, RG 21)|
Good Humor v. Popsicle
The Depression caused problems with the 10-cent ice cream market but not with the cheaper ices. The Popsicle Corporation advertised itself as "Depression Proof" and stated that its sales had doubled between 1930 and 1931. "People who could not afford dimes, quarters and halves for ice cream gladly bought Popsicles at a nickel each for children, family and friends," according to a February 1931 advertisement. Popsicle sold more than 200 million units in 1931.
The division of the frozen sucker market between Good Humor and Popsicle seemed relatively secure and understood by both parties. As related by Clara Burt Roller, "The Popsicles did not compete with Good Humor ice cream confections . . . because, first, the 'Good Humor' was an ice cream and Popsicles were ices of different flavors."
But Popsicle was under pressure by some of its licensees to provide a cheap ice cream product after the drop in dairy prices made such a product attractive. In the fall of 1931, Popsicle, Lowe, and Citrus approached Good Humor with an offer to create such an item and to refine the division of products in the 1925 agreement. Popsicle wanted to have the rights to manufacture all products containing less than 4.5-percent butter fat as a form of sherbet. Those above that limit would fall into the category of "ice cream, ice custards, and the like" and would be produced by Good Humor. The type of product that Popsicle wished to create would be considered an "ice milk" or "light ice cream" today.
The 1925 licensing agreement between Popsicle and Burt allowed Popsicle to make "sherbet," but at that time the industry did not have a set definition of sherbet. Popsicle felt secure that they could make any product that was not regulated as ice cream. Good Humor did not want competition from Popsicle in the manufacture of any milk-based frozen sweets, claiming that the 1925 license agreement prohibited such a product.
One reason why Good Humor did not want to relinquish this part of the market was its introduction of a new product known as the "Cheerio" bar—a 5-cent version of the 10-cent Good Humor bar—in the fall of 1931.
During the winter of 1931–1932, Popsicle authorized its companies to begin producing the "Milk Popsicle," a chocolate-covered confection that had 4.48-percent butter fat in its composition and used a keystone-shape design. R. W. McConnochie, vice president of the Frozen Confections, Inc., a Good Humor subsidiary, protested that "the Milk Popsicle is purchased . . . in the belief that it is ice cream and afford to him a much larger quantity of such an edible product than does the Cheerio."
Good Humor claimed that Popsicle's introduction of an ice milk product in 1931 violated their 1925 agreement. (Records of District Courts of the United States, RG 21)
On February 20, 1932, Good Humor filed suit in the U.S. District Court in Delaware against the Popsicle and Joe Lowe corporations claiming infringements of the 1925 agreement because Popsicle was (1) making a milk-base product and (2) using a rectangular design.
Good Humor's president, Thomas J. Brimer, referred to various Popsicle advertisements from 1925 to 1930 in which the latter company promoted its products as water-based confections. Among these was Popsicle's own questionnaire to its sales agents relating to potential infringements: "Anyone putting out a frozen water ice on a stick and making from anything other than Popsicle Flavors or calling it by any name other than Popsicle is an infringer."
Judge John J. Nields read all of the affidavits and heard the testimony in the case. He recognized that Burt and the Popsicle Corporation intended to divide the frozen sucker field. He determined the main reason for the lawsuit: "What was the division? That is the question in dispute."
Both sides attempted to define the composition of a sherbet using dictionary terms and the belief of ice cream manufacturers of the times. Among Good Humor's definitions was that of a "flavored water ice." Popsicle countered by stating that its new "Milk Popsicle" was a sherbet in the understanding of the ice cream industry. From the manufacturer's viewpoint, an ice "is a mixture of water, sugar and flavor, while a sherbet is the same with the exception that the water is replaced with a milk product or, in modern practice, ice cream mix."
In his rebuttal of Popsicle's arguments, R. W. McConnochie received 32 responses to his inquiry to state regulators regarding the status of the Milk Popsicle formula relative to their ice cream standards. The majority of them declared this formula to be prohibited as an ice cream in their states and that any product made from the formula clearly had to be labeled as an "imitation ice cream," "frozen custard," "milk sherbet," or "ice milk." Only the Milk Popsicles manufactured in California were labeled as Ice Milk Popsicles.
After understanding all views in the case, Judge Nields was satisfied that term "sherbet" in the agreement was strictly to mean a "water sherbet," and indeed the two companies co-existed peaceably for about six years between 1925 and 1931 without challenging the understandings of their division. Having become satisfied that the Milk Popsicle was a violation upon the Good Humor rights, he issued an injunction against the product on May 27, 1932. He did not make any ruling upon the shape of the confection, except to say that the Milk Popsicle and the Cheerio or Good Humor bars were alike in appearance, texture, and taste.
Both sides appealed his decision to the U.S. Circuit Court of Appeals in 1933. Popsicle appealed his rulings on sherbet composition, and Good Humor appealed on the absence of any definitive ruling regarding the Milk Popsicle's rectangular shape. The court of appeals confirmed Nields's decision relating to the division of the marketplace because the district court was not asked to define "sherbet" but only the 1925 division of the marketplace. It also confirmed that Judge Nields was concerned only with whether the Milk Popsicle was a permitted product under the agreement and not with the shape of the Popsicle.
The decisions by both the district court and the Third Circuit Court of Appeals found Popsicle and Joe Lowe, Incorporated, violating the 1925 agreement. Before the opinion was rendered, however, Good Humor and Popsicle concluded negotiations for a new agreement, signed on April 7, 1933. They allowed their respective appeals to be decided by the courts, but any opinion rendered by the courts would be held in abeyance during the lifetime of their new agreement.
The Frozen Sucker War had come to a peaceful end. Popsicle was allowed to continue manufacturing water ices in a keystone design and later developed new forms for its creation, including the familiar double-stick Popsicle. Ironically, today both the Good Humor Bar and the Popsicle are owned and manufactured by the same company, Good Humor-Breyers Ice Cream.
Note on Sources
There are many stories about American life and culture that appear in the records of the federal court system. This article was intended to concentrate on one specific case, but it soon became evident that papers filed in various suits brought before the district court judges throughout the country recorded the entire early history of Good Humor and Popsicle. The case files in the Records of District Courts of the United States, Record Group 21, are held at the regional archives of the National Archives and Records Administration.
The author wishes to thank staff in other regional archives for their assistance in locating various court cases: John Celardo (New York), Mary Evelyn Tomlin (Atlanta), Glenn Longacre (Chicago), Timothy Rives (Kansas City), Barbara Rust (Fort Worth), David Piff (San Bruno), and Lisa Gezelter (Laguna Niguel).
These cases were heard before a number of federal courts, whose records are held in various regional archives. Among the cases consulted for this article are:
NARA–Mid Atlantic Region (Philadelphia)
U.S. District Court for the District of Delaware: Equity Case # 953 (Good Humor Corporation of America v. The Popsicle Corporation of the United States, and Joe Lowe Corporation); Equity Case # 603, Citrus Products Company v. The Popsicle Corporation of the United States.
U.S. District Court for the District of Maryland: Equity Case # 880 (The Popsicle Corporation v. Horn Ice Cream Co., Inc.).
United States District Court for the Eastern District of Pennsylvania: Equity Cases # 3341 (The Popsicle Corporation v. William Bellmann), # 3345 (Max Rudolph, defendant), # 3347 (Max Zimmerman, defendant), # 3349 (Philip Rubin, defendant), # 3351 (Morris Adelman, defendant), and # 3353 (Morris Ostrow, defendant).
NARA–Northeast Region (New York)
United States District Court for the Eastern District of New York: Equity Case # 2022 (The Popsicle Corporation v. Robert Bayer)
United States District Court for the Southern District of New York: Equity Case # 31-265 (Harry B. Burt v. Popsicle Corporation of the United States, Inc.); Equity Case # 46-58 (The Popsicle Corporation, The Popsicle Corporation of the United States, and Cora W. Burt v. Isadore Weiss (doing business as Goody Frozen Products Co.).
NARA–Great Lakes Region (Chicago)
U.S. District Court for the Northern District of Illinois, Eastern Division: Equity Case # 5064, (Harry B. Burt v. Citrus Products Company and Eric Scudder).
NARA–Central Plains Region (Kansas City)
U.S. District Court for the Eastern District of Missouri: Equity Case # 8756 (The Popsicle Corporation, The Popsicle Corporation of the United States, and Cora W. Burt v. Dolores C. Madison and Lillian Hoagland.)
NARA–Southwest Region (Fort Worth)
U.S. District Court for the Northern District of Texas: Equity Case # 3179-437 (Cora Burt v. Have-A-Heart Ice Cream Company).
NARA–Pacific Region (Laguna Niguel)
U.S. District Court for the Southern District of California, Central Division (Los Angeles): Equity Case # S-23-M (Cora W. Burt Roller v. K. Kirk); Equity Case # R-77-J (National Popsicle Corporation, The Popsicle Corporation of the United States, and Cora W. B. Roller v. Icyclaire, Inc., and Joseph Valente).
Additional cases are known to have been filed in various courts in Alabama, California, Florida, New Jersey, and New York.
U.S. Patent Office, Patent Numbers 1,404,539, 1,470,524, 1,470,525, and 1,505,592.
Candy and Ice Cream for the Candy Store, Fountain and Tea Room, Volumes 33 and 34, 1922–1923.
Anne Cooper Funderburg, Chocolate, Strawberry and Vanilla: A History of American Ice Cream (Bowling Green State University Popular Press, 1995)
Jefferson Moak is an archivist in the National Archives and Records Administration–Mid Atlantic Region (Philadelphia) and has written extensively on Philadelphia history, including Atlases of Pennsylvania (1976), Philadelphia Street Name Changes (1997), and Architectural Research in Philadelphia (2002).