Despite these false starts, Glassner still didn't discount the possibility of a negotiated settlement; with his blessing, another group from Henri's traveled to Chicago to renew the peace talks. This time it was Brachman himself who queered the deal by walking out when he was informed that Kraft's CEO would not join him at the table. The final straw came during a July 1981 meeting arranged by a court-appointed Special Master. (In lengthy litigations such as this one, a judge often hires a neutral party to referee evidentiary matters that need not claim the court's own time -- one hope being that the referee's presence will nudge the quarreling parties toward conciliation.) At that meeting in Chicago, James E. Hastings, yet another Kraft lawyer, reportedly turned to Brachman and said, "I'll tell you why we can't settle this thing, Bob. You're like a guy who comes into my garage and steals my car and then calls me up a week later and asks me for the title." Being called -- however obliquely -- a thief by Kraft was, for Robert Brachman, roughly equivalent to Herman Melville's Ahab standing on the deck of the Pequod and taking a spoutful in the face from Moby Dick. At that moment, according to his attorneys, the one man at Henri's with the power to compromise took his final vow nerver to negotiate again.
For a case that had been the focus of such protracted discovery proceedings, the trial of Henri's v. Kraft was almost mercifully brief. On December 8, 1981, what The Milwaukee Journal sardonically referred to as the "Salad Bowl" opened in U.S. District Court, Eastern Wisconsin, before Judge Terence T. Evans. Evans had already agreed, at plaintiff's request, to split off the antitrust charges and hear them later. (In fact, they would never be aired in court at all: Facing the prospect of many more months of evidence gathering, litigation, and appeal, lawyers for the two companies did agree to an undisclosed cash settlement on this and all matters except the trademark issue.) The judge had also taken the unusual step of imposing strict time limitations: Each side would have only 24 courtroom hours, or about one week's trial time, to argue its case. Glassner, fearing that his position as a Henri's board member might entail being called as a defense witness, handed over those duties to Ray Krueger. Krueger was opposed by Francis Higgins, of the Chicago firm of Bell, Boyd & Lloyd.
Standing before an array of spoonable dressings and armed with a grocery list of nondressing "whips" (some 50 in all, including Quaker Whip, Shur-Whip, ProWhip, Zip-Whip, Whip-ee, Whipee, and Whippet), Krueger read into the record a thought that had been much on the minds of anyone even remotely connected to either company. "It's a reasonable question to ask, I believe," he said, "[why] Henri's pursued this case. Who needs five years of litigation with a multibillion-dollar adversary? Surely Henri's does not." Higgins offered Kraft's answer to the question in succinct terms. "There's absolutely no reason in the world," he said, "why a company in the place of Henri's has to go out and of all the universe of potential marks put 'whip' on its label."
For the next two weeks, these questions would dominate a courtroom discussion so detail-driven that at one point Judge Evans likened it to a 33 1/3 rpm record being played at 45 rpm. As the parade of witnesses passed by -- food chemists, production managers, market researchers, trademark lawyers, dictionary experts -- the makeup, consistency, and manufacturing processes of both Yogowhip and Miracle Whip were debated as if they were elements of canonical law being chewed over by a particularly polarized ecclesiastical council. The metaphysics grew dazzling: What is a whip? A foam? A blend? Can two substances called Beatreme 3315 and San a NF be combined to make "yogurt," and if so, is that a food or a flavoring agent? Does "whip" as applied to food products imply the introduction of air to achieve a desired consistency, or is it merely a common action verb? What, indeed, is a verb? A noun? A gerund? What constitutes "likelihood of confusion" between competing products? What constitutes trademark-application fraud?Who at which company knew what, when did they know it, and how did that make a dime's worth of difference to the salad eaters of America? Glassner may have been soft-pedaling the issue when he observed that Henri's lawyers probably practiced "overkill." "I have the distinct feeling," he says today, "that Evans thought the whole question was a pretty simple one, really: Has 'whip' acquired a secondary meaning [on salad dressings], and if so, is Kraft entitled to its exclusive use? The rest seemed like window dressing."
Evans evidently concurred. In a decision handed down the following August, he dismissed Henri's charges of fraud, mislabeling, and unfair advertising. He did, however, enter a declaratory judgment that Yogowhip's trademark did not infringe upon Miracle Whip's, that "whip" is descriptive of the manufacturing process and characteristics of spoonable dressings, and that Yogowhip was not confusingly similar to Miracle Whip. While affirming the validity of the Miracle Whip trademark, he denied all counterclaims by Kraft. Evans's opinion was upheld a year later, in August of 1982, on a split decision by a three-member panel of the Seventh Circuit Court of Appeals.
On the day of decision, there should have been unrestrained jubilation in the boardroom at Henri's Foods: champagne, cigars, a sweet sense of vindication. In truth, there was little glee. "I think I took a long lunch hour that day," shrugs Norm Kidd, "but that was about it. It was such a long period of time, you know, that winning seemed almost anticlimactic." Says Ted Bayless: "I was a little disappointed. I mean, we'd taken on a tremendously powerful adversary and won, but we didn't get any money out of it. I guess it boosted our morale for a while, but after a month or so, it really wasn't much of a topic around the office."
