Potato Chip Institute v. General Mills, Inc.

333 F. Supp. 173, 171 U.S.P.Q. (BNA) 539, 1971 U.S. Dist. LEXIS 11261
CourtDistrict Court, D. Nebraska
DecidedOctober 13, 1971
DocketCiv. 1585 L
StatusPublished
Cited by21 cases

This text of 333 F. Supp. 173 (Potato Chip Institute v. General Mills, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Nebraska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Potato Chip Institute v. General Mills, Inc., 333 F. Supp. 173, 171 U.S.P.Q. (BNA) 539, 1971 U.S. Dist. LEXIS 11261 (D. Neb. 1971).

Opinion

MEMORANDUM OF DECISION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW

URBOM, District Judge.

The pivotal issue is whether labeling or advertising a product as “potato chips” tends falsely to describe or represent the product when it has been fashioned from dried potato granules rather than from sliced raw potatoes. Following five days of extensive presentation of evidence, careful briefing by counsel, and oral arguments, this court concludes that such labeling and advertising do not tend falsely to describe or represent the product if the labeling and advertising are accompanied by a prominent declaration that the product is made from dried or dehydrated potatoes.

Action for an injunction was begun under the act of Congress known as the Lanham Act, 15 U.S.C.A. § 1125, applicable portions of which are:

“(a) Any person who shall affix, apply, or annex, or use in connection with any goods * * *, or any container * * * for goods * * * any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods * * * to enter into commerce, and any person who shall with knowledge of the falsity of such * * * description or representation cause or procure the same to be transported or used in commerce or deliver the same to any carrier to be transported or used, shall be liable to a civil action by any person * * * who believes that he is or is likely to be damaged by the use of any such false description or representation.”

The plaintiff Potato Chip Institute, hereinafter referred to as PCI, is a nonprofit corporation duly organized and existing under the laws of Ohio and was such at the time of commencement of the action on September 26, 1969. PCI derives a substantial portion of its income from dues paid by its members, including the plaintiff Weaver Potato Chip Co., Inc., hereinafter referred to as Weaver. Members of PCI represent and at the time of beginning this lawsuit represented the major portion of the domestic production of potato chips and sell their potato chips in every state of the continental United States. Weaver is a Nebraska corporation incorporated July 11, 1947, having its principal place of business and its factory for the manufacture of potato chips and snack foods in Lincoln, Nebraska, and sells and since July 11, 1947, has sold potato chips to wholesalers, jobbers and retailers located in Nebraska, South Dakota, Iowa, Missouri, Kansas and Colorado. PCI has spent large sums of money in the promotion of the sale and use of potato chips, and Weaver has spent large sums of money in the promotion of the sale and use of its brand of potato chips.

For many years — direct evidence traces only approximately the last forty years, although some of Weaver’s advertising suggests one hundred years — the conventional manner of making potato chips has consisted of peeling, washing and slicing of raw potatoes, then dipping into deep fat the slices of raw potato until they are cooked crisp, and then removing the slices from the deep fat, drying and salting them. The result has been a thin, crisp, essentially round and somewhat curled piece of potato.

Since 1940 there have been numerous changes in the processes for producing potato chips, such as: (1) the development of new potato varieties with improved storage characteristics and dis *176 ease resistance; (2) improved cultural control of potatoes to ensure uniform potato maturity; (3) improved storage conditions for potatoes including the circulation of sulfur dioxide and carbon dioxide to inhibit decay; (4) improvements in the peeling of potatoes including steam peelers and automatic abrasion peelers; (5) improved slicing techniques including the development of the Urschel sheer; (6) improved washing techniques including the use of washing agents such as sodium bisulphite, sodium citrate, or citric acid to enhance uniform chip color; (7) improvements in excess water removal including air conduction blowers and absorbent rollers; (8) improved cooking procedures including microwave drying, infrared drying and hot air drying; (9) improved oil technology; (10) improved flavor treatment and development of specialty flavors such as onion, garlic and bar-b-que flavors; (11) improved packaging materials including polymer coated packages and nitrogen packing. With the possible exception of homemade potato chips, most potato chips made today utilize different manufacturing techniques and finishing techniques than were used for potato chips in 1940. As an association, PCI has encouraged the development of new techniques in the storage, processing, finishing and packaging of potato chips by its members and through the technological improvement committee of the PCI members of the PCI receive information as to new developments in the manufacture of potato chips. Members of the purchasing public have readily accepted the numerous improvements made in the manufacture of potato chips over the period of the past three decades as evidenced by the growing sales of potato chips over said period.

The defendant, hereinafter referred to as General Mills, is and at all times material herein has been a Delaware corporation doing business throughout the continental United States and elsewhere. In September, 1967, General Mills commenced manufacturing and selling a product branded as CHIPOS, which contained, among other ingredients, rice flour and dehydrated potatoes, and which was designated on the containers as “potato chips” and sold and promoted as “potato chips” until March, 1968. PCI, at least as early as March 19, 1968, complained to General Mills about the use of the words “potato chips” in the labeling, sale and promotion of said product, and again complained to General Mills on June 3, 1968; and at least as early as March 28, 1968, and again on June 7, 1968, complained to the Food and Drug Administration about General Mills’ use of the words “potato chips” in connection with said product. General Mills last shipped cases of the rice/ potato CHIPOS in November, 1968, and thereafter the inventories of CHIPOS in retail stores were sold out. General Mills then revised the formulation of CHIPOS and in April of 1969 introduced CHIPOS “New Fashioned Potato Chips” in test markets in four major cities in the United States including the Omaha-Lincoln, Nebraska, test market. The ingredients of the April, 1969, CHIPOS product are substantially identical to the present CHIPOS product and contain dehydrated potato granules as the principal ingredient.

CHIPOS are made from potatoes cooked, mashed and dehydrated, resulting in potato granules which are later moistened, rolled out, cut into pieces and fried. More specifically, in making CHIPOS the potato cells are initially obtained by the defendant in a dehydrated form of potato granules, the granules and an appropriate amount of water are then introduced into an enrober, a revolving cylindrical container set at an angle very much like a cement mixer, which tumbles the granules in water to wet the granules; an appropriate amount of invert sugar is then added; after appropriate mixing, the melted granules are compacted by a screw-driven extruder operated at a little above room temperature and at about 1,000 pounds per square inch pressure; the extruded pieces are then rolled onto a sheet, one side of which has a waffle *177

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Apple Inc. v. Amazon.com Inc.
915 F. Supp. 2d 1084 (N.D. California, 2013)
Dodd v. Fort Smith Special School District No. 100
666 F. Supp. 1278 (W.D. Arkansas, 1987)
Schroeder v. Lotito
577 F. Supp. 708 (D. Rhode Island, 1983)
Eastern Air Lines Inc. v. New York Air Lines, Inc.
559 F. Supp. 1270 (S.D. New York, 1983)
Estate of Presley v. Russen
513 F. Supp. 1339 (D. New Jersey, 1981)
Miller Brewing Co. v. Falstaff Brewing Corp.
503 F. Supp. 896 (D. Rhode Island, 1981)
Johnson & Johnson v. Carter-Wallace, Inc.
631 F.2d 186 (Second Circuit, 1980)
Fox Chemical Co. v. Amsoil, Inc.
445 F. Supp. 1355 (D. Minnesota, 1978)
National Football League v. Governor of the Delaware
435 F. Supp. 1372 (D. Delaware, 1977)
FRA S. P. A. v. Surg-O-Flex of America, Inc.
415 F. Supp. 421 (S.D. New York, 1976)
Wiener King, Inc. v. Wiener King Corp.
407 F. Supp. 1274 (D. New Jersey, 1976)
Matador Motor Inns, Inc. v. Matador Motel, Inc.
376 F. Supp. 385 (D. New Jersey, 1974)
Everco Industries, Inc. v. O. E. M. Products Co.
63 F.R.D. 662 (N.D. Illinois, 1974)
Natcontainer Corporation v. Continental Can Co., Inc.
362 F. Supp. 1094 (S.D. New York, 1973)
McTavish Bob Oil Co. v. Disco Oil Co.
345 F. Supp. 1379 (N.D. Illinois, 1972)

Cite This Page — Counsel Stack

Bluebook (online)
333 F. Supp. 173, 171 U.S.P.Q. (BNA) 539, 1971 U.S. Dist. LEXIS 11261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/potato-chip-institute-v-general-mills-inc-ned-1971.