WASHINGTON – Ice Cream giants Good Humor and Popsicle are best known for their sweet,frozen ice creams and treats. But in the 1920s,they fought a bitter legal war over who could put their frozen confections on a stick.
Harry Burt created the first Good Humor Bar by putting a stick in a chocolate covered ice cream bar and marketing it as a clean way to eat ice cream. Burt patented the process and machinery required to make the Good Humor Bar but was not awarded a patent on the product itself.
Then Popsicle put a stick in what’s still officially called a “frozen water ice.”
That’s when Burt sued.
The story of this legal battle was not found in history books or newspapers. It was hidden in a records room stacked floor to ceiling with boxes at the National Archives and Records Administration in Philadelphia,Pa.,said Jefferson Moak,senior archivist for the National Archives’ Mid-Atlantic Region.
Moak discovered this bitter battle while replacing some of the aging boxes and decided to make this “eureka moment” an area of research.
“You never know what you’ll find in the boxes,” he said.
Moak,lectured Tuesday on the patent-related legal disputes between ice cream manufacturers during the early 20th century.
After several court battles,Good Humor and Popsicle came to an agreement in 1925 to split the market,Moak said.
Good Humor would only make ice creams and custards in a rectangular shape,and Popsicle only would produce water ice,flavored syrup and sherbet confections in a cylindrical shape,he said.
Moak said the ice cream industry was “large and growing” in the 1920s. He said this was due to advances in refrigeration and ice cream’s exemption from the sugar rationing during World War I.
But in 1932,the agreement dissolved as a result of Popsicle’s “Milk Popsicle,” a chocolate-coated,frozen milk pop that had a shape and price similar to a Good Humor bar of the time called the “Cheerio Bar.”
“This is what enraged the Good Humor folks to no end,” Moak said.
Popsicle said the Milk Popsicle was sherbet,not ice cream,but the industry’s failure to set a definition of what sherbet should be made of caused the agreement to fall apart.
A Delaware judge ruled that Popsicle violated the agreement because the Milk Popsicle was a milk-based product. An appellate court upheld the decision.
Moak said the government played the role of an arbiter rather than a regulator in that it didn’t seek to establish a definition of what a sherbet could be made of.
“The courts do have a tremendous amount of records relating to the food industry in the United States,” Moak said.
The dispute between Good Humor and Popsicle falls under the area of patent law,said Michael Carroll,director of the Program on Information Justice and Intellectual Property at American University’s Washington College of Law.
Carroll said that this case shows the early formations of national brands,large companies that would patent their products and license them to franchises for manufacturing.
“Patents can create a bit of a cartel,” he said,because they allow companies to control who gets to manufacture a product.
D’Andre Childs,43,of Las Vegas,Nev.,was eating an ice cream bar on the Mall after visiting the Smithsonian Air and Space Museum on a recent afternoon.
He said he does not enjoy Popsicles because they are “too sugary.” But when he shops for a specific ice cream flavor he is brand aware.
“If I have a notion,I’ll go for a brand,” he said.
Ice Cream made up 86.7 percent of the frozen dessert market in 2009,according to the International Dairy Foods Association. The rest of the market was made up of frozen yogurt,water ices and sherbets.
Though the legal battle ended in a Delaware appellate court,the true conclusion to this frosty affair came much later. Popsicle and Good Humor have been owned for years by food and home product giant Unilever.
Reach reporter Jorge Valens at [email protected] or 202-326-9871
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