What was a topic of discussion around the office was the exorbitant price of victory. By the end of fiscal 1982, Henri's was staring at an anomalous six-figure operating loss. Legal bills for the seven-year holy war with Kraft had come to a whopping $1.2 million, and while the two sums were not directly related, "it was hard not to draw a connection [between them]," as one member of the company family put it. But money -- or profit -- was not the only worry. Preoccupied with the lawsuit, Henri's directors had allowed new-product development to slow, if not stall completely. Even Yogowhip, the commodity on which such great stakes had been wagered, had begun to resemble an orphaned child: With no advertising to support it and its trademark status cloudy, the dressing had all but disappeared from grocers' shelves. Worst of all, many at Henri's had come to feel that the same drive pushing Robert Brachman to take Kraft to the canvas had pushed him apart from his own management team. Glassner, for one, thought Brachman was "running a dictatorship." Les O'Rourke, for another, pushed Brachman for more marketing support and got pushed out of the company instead. Herb Mahler was unhappy, and told Brachman so. Jim Brachman was "concerned."
By early 1984, the situation was rapidly deteriorating. Sales had rebounded from the year before -- up about $1 million, or enough to show a pretax profit of $800,000 -- but the board was badly split over policy issues. In July, neither Glassner nor Bob Brachman was reelected to the board. Glassner advised Brachman to hire his own attorney. The advice was timely. Although Brachman had the resources to effect a stalemate -- he and Mahler each controlled 50% of the employees' stock -- he had lost his leadership consensus, and in a family business like Henri's Foods such a loss proved paralyzing. There was talk of finding a third party to come in and run the company. There was talk of selling the business outright. Each new option seemed even more unappetizing than the last.Finally, reluctantly, Jim Brachman threw his lot in with the Mahler faction, and his brother was out. "I wasn't around much then," says Glassner, "but it must have been hell up there."
Robert Brachman moved on to become an independent food consultant in Milwaukee. He does not care to discuss the case. "It's past history for me," he says. "there are others with a far better memory for detail than I have." And neither Herb Mahler nor Jim Brachman will go into much detail in recalling the painful time.
As for the Kraft attorneys who tasted the mat, they, too, are tight-lipped about particulars. "When you talk about pursuing trademark cases," says Donald Carlin, senior vice-president and general counsel, "it's really more appropriate to talk about protecting the consumer -- the consumer out there who is loyal to Kraft products and who may be purchasing something he thinks is made by Kraft but is not. It's not a question of protecting sales or profit figures; it's consumer trust and confidence we're worried about. We're on the horns of a dilemma. If you don't sue, the mark tends to get diluted. If you sue and lose, the court kind of draws a circle around your mark and says you've gone too far. The only way to avoid that, of course, is to sue and win, but you can never be sure about [the outcome].
"The size of the [competitor] really isn't relevant," Carlin adds, "because small companies often get acquired by larger ones, and suddenly a product that's pretty local becomes a national one. Sure, litigation gets expensive. And you shouldn't have a system where a small company cannot assert its legal rights. But you shouldn't necessarily sympathize with that small company if it's trying to get into a market with a product that looks or sounds just like another product. Just as you cant't settle with everyone who sues you, even if it would be cheaper to do so."
Out in Milwaukee these days, the reverberations of the lawsuit are still echoing through the corridors. Sensing the futility of marketing Yogowhip as a direct competitor to Miracle Whip, Henri's has decided to reposition the product as a "reduced calorie dressing," an effort that is still in its infancy. With a new blue label ("Tastes Like Salad Dressing") featuring a tape-measure motif and a modest ad budget, Yogowhip is being reintroduced this winter in a few select test markets. "It's part of our whole line of reduced-calorie yogurt dressings," explains vice-president of sales Al Costigan, "and we won't know until spring how the whole campaign's going. We do know one thing: The product tastes good, and it should be attractive to the health-conscious consumer. But we also want it to be a profitable item for the retailer. You won't see Yogowhip as a loss leader."
You won't see the scars on the label, either, but they are there. Late last year came intimations of another power struggle between managers and board members over which market -- retailers or the foodservice industry -- would get the lion's share of Henri's limited resources. Again, Glassner feared that the only sane recourse might be to engineer the sale of the company. In early December, however, he was a catalyst in reopening negotiations between the two factions -- Mahler and Brachman -- whose feud had, in many senses, begun with Kraft attorney Dolores Hanna's dire warning of eight and a half years ago. Who will play what role in helping to put Henri's back on an even keel is still a matter of doubt. But one corporate hope is to make a major penetration of the fast-food-franchise market with their new, easy-pour, flexible packets.
"After all these years," says Glassner, "we're moving back toward exploiting our advantages in retail packaging. Henri's has come full cycle." Those years now number 50, and surviving the last 9 of them legitimately qualifies as a minor miracle.
