Debbie and Russel Kruger own a small drugstore and soda fountain in
Mandan, North Dakota. Debbie also makes candy. She has created three
different candy bars, one of which she calls the Lewis & Clark Bar.
Debbie Kruger created the Lewis & Clark bar in 1997 to commemorate the
upcoming two-hundredth anniversary of the expedition led by Meriwether
Lewis and William Clark up the Missouri River from St. Louis in 1804.
Lewis & Clark spent the winter at Ft. Mandan, a forty miles north of the
Debbie Kruger has manufactured roughly 30,000 Lewis & Clark bars. She has
sold about 20,000 of them.
In September 1999, the Krugers received a letter from a lawyer in Boston.
The lawyer said he represented the New England Confectionery Company
(Necco) -- the makers of Necco wafers and those little heart candies that
say things like "Marry Me," "Be Mine," and "Kiss Me."
Necco, which is owned by UIS, a larger conglomerate, recently bought the
company that makes the Clark Bar, and the Boston lawyer claimed that the
Lewis & Clark Bar infringes on Necco's rights to the Clark Bar name.
"We want to come to some arrangement with you that permits your limited
use of the Lewis and Clark Bar, subject to conditions, and provides for
the cancellation of your North Dakota trademark registration or its
assignment to my client," wrote Thomas Smurzynski, Necco's lawyer. "The
arrangement must acknowledge my client's significant concern about
protecting its valuable intellectual property assets."
The Krugers' position is that the Lewis & Clark bar is a totally different
candy bar with a totally distinctive wrapper. There is no infringement,
they claim. And they called their Senator, Byron Dorgan (D-North Dakota),
Last week, Senator Dorgan took to the floor of the U.S. Senate to argue
the case for his constituents.
"What happened here is wrong, but it happens all the time," Senator Dorgan
said. "It is throwing your weight around, if you are big enough to do it."
"My message for Necco is -- pick on somebody your own size," Dorgan said.
"I am one of their customers and I say to Necco -- lay off small
businesses. Don't hire blind lawyers. If you can't tell the difference
between their Clark bar wrapper and the wrapper for the Lewis & Clark bar,
then get a new lawyer."
Dominic Antonellis, the President of Necco, says that Senator Dorgan has
it all wrong.
First of all, he says, Necco is independently run, and
Necco is not a large company.
"There are 380 candy companies in the United States," he said in an
interview. "The candy and snack market is a $24 billion market. And five
companies -- Hershey, M&M, Nestle, Favorite Brands, and Nabisco --
represent 80 percent of the sale of candies. Of the remaining 375
companies that are left, we are probably in the middle range."
Antonellis says that Necco bought the company that makes the Clark bar in
June 1999 for $4.1 million.
"The Clark name for candy is trademarked," he says. "We wrote them a
letter. We wanted them to recognize that we own the Clark trademark. We
weren't looking for money. I wanted a conversation with them, to allow
them to use the mark, but we would have had an interpretation that they
couldn't go nationwide with the Lewis & Clark bar."
"I have no problem with them selling their product in their area," he
If he didn't have a problem with selling in North Dakota, why did he
demand that the Krugers turn over the Lewis & Clark Bar trademark to
"There would have been an assignment back to them" to allow the Krugers to
market in North Dakota, he says.
Antonellis says he was concerned that Senator Dorgan and his staff did not
call Necco before taking to the Senate floor. "I believe that is wrong,"
But Senator Dorgan says he wants to a put a stop to corporate bullying.
"How often do you hear members come to the floor of the Senate and worry
about the number of lawsuits in this country?" he asked. "They worry about
the lawsuits filed by customers against big corporations. What about this
use of lawyers by a big company trying to put a small company out of
business? What about that kind of corporate bullying? It is time to stop
Russell Mokhiber is editor of the Washington, D.C.-based Corporate Crime
Reporter. Robert Weissman is editor of the Washington, D.C.-based
Multinational Monitor. They are co-authors of Corporate Predators: The
Hunt for MegaProfits and the Attack on Democracy (Monroe, Maine: Common
Courage Press, 1999, http://www.corporatepredators.org)