Cold War: The Legal Battle Between Good Humor and the Popsicle Corporation

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Advances in refrigeration technology led to an explosion in the world of ice creams and other frozen treats in the early 1900s. The ice cream cone, ice cream bar, Eskimo Pie, disposable ice cream cup, and ice pop were all invented or popularized within the first two decades of the century. Just a few years later, Harry Burt and Frank Epperson almost simultaneously invented what would become two of America’s most enduring brands of frozen novelty.

Burt, a Youngstown, Ohio, confectioner, hit upon a “new, clean, convenient way to eat ice cream” when he inserted a stick into a chocolate-covered ice cream bar. He called it the Good Humor Bar.

Epperson’s invention was less intentional. As a young man, he’d left a sweet, syrupy soft drink with a stirring stick outside on a cold night. When he went to retrieve it in the morning, he found the drink frozen around the stick. Later, he recreated his accident for manufacture. He dubbed it the “Epsicle,” but his kids quickly renamed it the “Pop’s Sicle.”

The Popsicle, as it was eventually branded, was what you would call sherbet or water ice on a stick, while the Good Humor Bar was chocolate-covered ice cream on the same conveyance. They seem different enough, but the similarities were a little too close for the comfort of the inventors. Both Burt and Epperson held patents on the methods for making their products and on a few pieces of specialized equipment involved, and had filed lawsuits against imitators before. The almost-instant success of their respective treats brought them to each other’s attention, and a legal battle broke out.

Burt had received his patents first and, through them, insisted that he had the sole rights to all forms of frozen confections on sticks. In 1925, Good Humor sued the Popsicle Corporation for infringement of its rights. The parties reached an out-of-court agreement that basically split the market. Popsicle would pay a licensing fee to Burt, and would limit their products to treats “comprising a mass of flavored syrup, water ice or sherbet frozen on a stick.” Burt, meanwhile, would keep the exclusive rights to produce “frozen suckers from ice cream, frozen custard or the like." They also agreed to that Popsicle’s products would maintain a “cylindrical form,” while “rectangular forms” would be Burt's.

Got Milk Popsicles?

The agreement kept the peace for a while, but some of Popsicle’s licensees pressured the company to capitalize on a drop in dairy prices with an ice-cream-on-a-stick product of its own. In 1931, Popsicle approached Good Humor with the idea of redefining the division of products to allow them to manufacture products with less than 4.5% butter fat, like a “milk popsicle.”

Good Humor rebuffed them, but their agreement allowed Popsicle to make “sherbet,” without giving a set definition to the term. Popsicle felt confident that an ice milk with 4.48% butter fat (and a cylindrical form) counted as sherbet and didn’t violate the agreement. They began rolling the product out in 1931 and Good Humor brought them back to court almost immediately.

The testimony from both sides largely revolved around the definition of sherbet, with Good Humor arguing that it was "flavored water ice,” and Popsicle claiming that a milk sherbet was still a sherbet in the parlance of the ice cream industry.

The judge ultimately decided that “sherbet” in the 1925 agreement was strictly meant to mean a "water sherbet," and issued an injunction against Popsicle’s new product. Permanent peace only came years later when both the Good Humor Bar and the Popsicle came under the ownership of Unilever.

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September 5, 2012 - 8:13am
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