Common Word Trademarks: Popsicle

Ever since people discovered ice and snow, they’ve looked for ways to incorporate them into cold, tasty treats. Ice cream and sherbet have been around for hundreds of years. Cones and cups made these frozen treats portable, but it took an 11-year-old California boy to invent one of the most famous.

Frozen Fun

In 1905, Frank Epperson was 11 years old and living in Oakland. One day, he used a wooden stick to stir powdered drink mix, sugar and water in a glass. He was distracted and went inside, leaving the glass to sit outside overnight. In the morning, he found a glass filled with a sweet, frozen mixture. He used the stick to pull it out, tasted it and realized he had an amazing invention.

Epperson began making the frozen pops for his family and friends. As an adult, he made them for his children. In 1923, he filed a patent for his invention. The patent described the Popsicle as a “frozen treat of attractive appearance” that people could eat without a plate, fork or spoon. He wanted to call them Eppsicles, but his children insisted he use the name they used, which was “Pop’s sicles.”

Popular Treat

Epperson created his Popsicles from juice and frozen fruits in seven flavors. He sold them at Neptune Beach, a popular amusement park in Alameda. Epperson regularly sold thousands of them at each event. He formed the Popsicle Corporation in 1924.

In 1925, he partnered with the Joe Lowe Company to license and sell Popsicle products nationwide. In a few years, however, he was struggling financially and sold all his rights to Popsicle to the company. The Lowe Company turned Popsicle into a huge success. There were several reasons for this.

During Prohibition, sales of ice cream and other frozen treats soared. Companies that formerly produced beer and spirits used their machinery to crank out tubs of ice cream and other frozen goodies. People who had once used bars and cocktails to relax now spent time at soda fountains. This coincided with advances in refrigeration and transportation that allowed companies to transport the frozen treats everywhere.

Ice Cream Inventions

This was also a time when many new ice cream inventions were coming out. Teacher Christian Nelson invented the Eskimo Pie in 1922, and candy maker Harry Burt created the chocolate-covered ice cream bar on a stick that he dubbed the Good Humor Bar. Burt also pioneered the use of roving ice cream sellers in their Good Humor trucks. In 1924, the Citrus Products corporation issued a frozen drink it called the Frozen Sucker.The timing was right for the Lowe Company.

All this invention may have been great for ice cream lovers, but it was bound to lead to claims of patent and trademark infringement. Too many of these frozen treats looked a lot like each other.

First Litigation Battles

In 1924, the Popsicle corporation sued two of its competitors for making frozen confections. The court upheld Popsicle’s claim. A year later, it sued several ice cream makers, including Horn Ice cream. All these claims were decided in Popsicle’s favor.

In 1925, Good Humor sued both the Popsicle Corporation and Citrus Products. He claimed that only his company, Good Humor, had the trademark on any frozen treat on a stick. In fact, Burt’s patent was only for the machinery to make his Good Humor bars and not for the frozen product itself.

More on trademarking common words.

Suits and Countersuits

Popsicle countersued, and a long-running legal battle began. The final court decision split right down middle. It ruled that Popsicle could sell frozen, water-based treats and Good Humor could sell frozen, dairy-based treats.

In 1927, the companies signed a licensing deal that would allow them to protect their trademarks against competitors. Just a year later, however, Good Humor sued Popsicle for creating the Milk Popsicle, which it called a violation of the deal. In 1932, a court ruled in favor of Good Humor and ordered Popsicle to stop making any milk-based frozen treats.

End To Litigation

In 1928, Harry Burt’s widow sold his business to the Midlands Food company, which later changed its name to the Good Humor Company.

In 1989, the multinational Unilever Corporation bought the rights to Popsicle and Good Humor, which put a peaceful end to litigation between the two companies.

Unilever Protects Its Trademark

It didn’t end litigation over the name, however, as Unilever has been vigilant about protecting its Popsicle trademark. In 2010, the company sent a cease-and -desist letter to Brooklyn-based People’s Pops for using the word “popsicles” on its blog. The company now uses the generic term “ice pops.”

In 2014, it sued Blue Bunny for making Bomb Pops, which Unilever said were copies of its own Firecracker Popsicles. Like the Firecracker, the Bomb Pop is red, white and blue. It’s also shaped a lot like a rocket. Unilever called it “blatant and outrageous copying.” The case was settled.

Keeping a Trademark Takes Vigilance

All this may seem overly aggressive, but it’s what any company with a well-known trademark must do. Failure to enforce its trademark rights could leave Unilever with a trademark that becomes a generic term.

That has happened to several well-known brands. Many people don’t realize that aspirin, yo-yo, linoleum and trampoline were once trademarked. Over time, they became generic terms that were no longer protected by law. Sometimes, that happened because consumers confused the brand name with its competitors. In other cases, it happened because the trademark owners didn’t renew their trademark or litigate to protect it.

Treats and Trademarks

When you own a trademark, vigilance is key to keeping it. It’s what led to the litigation wars of the frozen treat companies, and it’s still important today.

Xavier Morales, Esq.

About the Author:

Xavier Morales, Esq.

Mr. Morales founded this trademark law practice in January 2007 with the goal of providing intellectual property expertise to entrepreneurs and businesses around the country. Since then, he has filed more than 6,000 trademarks with the USPTO. You can learn more about Xavier here.

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