Whipped!

Late in June of 1976, the high command at Henri's Food Products Inc., of Milwaukee, received a letter from Kraftco Corp. (now Kraft Inc.) senior attorney Dolores Hanna. Ms. Hanna wrote to them on the matter of Henri's recent introduction of Yogowhip, a salad dressing with a yogurt base that had, with some fanfare, joined Henri's general product line of pourable and spoonable salad toppings. Her words were curt and to the point.

"As I am sure you must be aware," she wrote, "the MIRACLE WHIP trademark has been used for many years by Kraft Foods for its salad dressing, and the trademark has been registered in the United States Patent and Trademark Office. MIRACLE WHIP is one of the most important trademarks of the corporation, and we have been diligent in asserting our rights and in objecting to confusingly similar uses." Hanna then asked for Henri's "immediate assurance" that the Yogowhip trademark would be dropped.

Among the inner circle at Henri's -- two brothers and a first cousin, all sons of the company's founders, plus a veteran trial attorney -- the letter drew a sharp reaction, especially the "diligent in asserting our rights" part. All of them assumed that Kraft meant business, meant it to the extent that the $5-billion-a-year food company would threaten legal action. Henri's, the sixty-largest manufacturer of salad dressings in the United States (and the only independently owned company to rank that high), was basically a local operation: Its major distribution radius didn't extend much beyond 500 miles from Milwaukee. With only 54 employees and $9 million a year in revenues, the company's resources to wage a court battle were, by any stretch of the imagination, limited. Something like this, they knew, could easily wind up costing several hundred thousand dollars -- with no guarantee of victory.

Still, as executive vice-president Herbert P. Mahler put it, the general feeling in the boardroom was, "They're not gonna push us around."

"We had already spent a not on Yogowhip, including $50,000 for a television commercial," explains Maphler, now president of Henri's, "and we were encouraged by its reception. At one point we had almost 100% of the Los Angeles market in yogurt dressings. We'd sold in the Southwest and West before, but they had never been profitable areas for us, primarily due to freight costs and distributor discounts. These new dressings were our chance. The idea was to get into [new markets] with them and piggyback other Henri's products on top."

Mahler was disturbed, but the man most outraged by Kraft's blunt warning was Robert Brachman, then Henri's president. Brachman, like Mahler, was a son of one of the company's founders and, also like Mahler, had cut his corporate teeth in the sales division. In the 35 years that Brachman had been selling salad dressings, no competitor had earned his enmity quite the way Kraft had. "Everything we'd been working for -- the innovation of products, the innovation of a new name -- to me was in jeopardy," Brachman would later testify from a federal court witness stand. "I felt that we were threatened by our major competitor, and I saw no reason for this." In a newspaper article preserved in the company's archives, Brachman recalled the early days when he practically had to beg Kraft salesmen for shelf space in stores that also bought dressings from Henri's.

"There's a certain arrogance about Kraft because of their success and size," said Brachman, "and it's festered. Kraft has always had their foot on our necks."

So weeks passed, and no such assurance to attorney Hanna was forthcoming. In its stead came a letter dated August 12, 1976, from William E. Glassner Jr., the trial attorney who served as counsel to Henri's. Although Henri's "has the greatest respect for Kraftco and would like to enjoy a congenial relationship with such a great and good company," wrote Glassner, his client was not about to abandon the name Yogowhip.

"First of all," Glassner contended, "Kraftco's mark is not WHIP but, rather, MIRACLE WHIP. . . . I respectfully suggest that if, by suing my client for its use of YOGOWHIP you attempt to make MIRACLE WHIP into WHIP alone or if you succeed in convincing a court that the two were synonymous, you will seriously jeopardize a very valuable mark." His reply bore the shape of a dropped gauntlet.

Hindsight is clear sight. Had Dolores Hanna looked into a crystal ball instead of a jar of salad dressing, she might have thought twice about trying to put the fear of God into such a small but determined adversary. Because she did not, her letter set in motion a classic piece of free-market litigation, a civilized duel of citations and depositions and a nasty street brawl that inflicted casualties on both sides. By the time it was over, Glassner and his colleagues "knew more about the way Kraft operates than anyone at Kraft did," and had put at least a small dent in the giant's dominance of the market. Yet even that accomplishment would be small solace to the walking wounded at Henri's Foods. Although Henri's executives won the battle, they came very close to losing the war.

At 62, Bill Glassner has cultivated the faintly professorial mien of a corporate counsel headed gracefully for semi-retirement. A founding partner of Charne, Glassner, Tehan, Clancy & Taitelman S.C., one of the more respected law firms in downtown Milwaukee, Glassner might be forgiven at this stage of his career if he went the whole John Houseman route, sitting on a high horse and pontificating to underlings about the good old days. Such posturing does not appear to be part of his nature. He is generous toward colleagues -- and competitors -- in the manner of a man who does not automatically assume he can do the job better.

Glassner was a young pup out of University of Wisconsin Law School when Robert Brachman, one of his wife's old schoolmates, hired him to do some work on a personal insurance matter.

"Bob had a motorboat on Lake Michigan," recalls Glassner. "Some freighter came along and ran over it, sank it like a rock. I barely know what I was doing at the time, but I went to court and got a restraining order on the freighter until we could settle the insurance claim. As you can imagine, the shipping company went nuts. Bob wound up with a 48-foot Chris-Craft.