Don't Use the P Word: A Popsicle Showdown


Nathalie Jordi

A rather terrifying letter recently burst the bubble of good vibes that has surrounded our shop since we opened.

"This law firm acts as outside trademark counsel to Unilever Supply Chain, Inc., and its affiliates ('Unilever')," it said. "Because POPSICLE® is Unilever's registered trademark Unilever must request that you replace all of the references to 'popsicle' and 'popsicles' ... with proper generic terminology such as 'ice pop(s).' We ask that you please provide us with written confirmation of your compliance with the foregoing by Friday, May 7, 2010."

Well, okay.

Here's the story of POPSICLE®.

In 1905, 11-year-old Frank Epperson fixed himself some powdered soda and water and left the container outside with the stirring stick still in it. On that unusually cold night in San Francisco, the mixture froze, and the first-ever "Epsicle" was born. Eighteen years later, in Alameda, Epperson started selling "The Frozen Drink on a Stick!" at Neptune Beach. He applied for a patent a year later and sold the rights to what he now called "Popsicles" another year later (1925), to the Joe Lowe Company in New York. Over time, they became so iconic that during World War II the Eighth Air Force Unit chose them as the symbol of American life. Over the last 85 years, the horse-drawn cart that sold POPSICLES® to schoolchildren in Nebraska (also carrying the first ice-cream man!) has morphed into a veritable fleet of trucks that cover the land selling water, high fructose corn syrup, gums, colorants, and preservatives to people young and old all over the country.

I mean, at this point POPSICLE® is such a ubiquitous word that it rolls off the tongue more easily than "ice pop." It's like Kleenex®, or Xerox®—pervasive to the point of generic.

In 1989, Good Humor, a subsidiary of Unilever, bought the rights to POPSICLE®.

Today, two billion POPSICLE® ice pops are sold annually.

The end.

Sort of.

In June 2008, Joel, David, and I decided to see what ice pops made using local fruit in season might taste like, and, sort of by accident, subsequently began making on a regular basis what we called People's Popsicles. We got rubber stamps made with the name, and stamped our sticks with them. As time elapsed and the pops became a regular gig, we bought the domain name and got business cards made. Et cetera.

Shortly thereafter, we figured out that POPSICLE® was a trademarked term. So we switched gears: bought and, when we formed as an LLC in 2009, did so under that name. But we'd been lazy about using the word "popsicle" on our blog.

Can you blame us? I mean, at this point POPSICLE® is such a ubiquitous word that it rolls off the tongue more easily than "ice pop." It's like Kleenex®, or Xerox®—pervasive to the point of generic.

But it isn't generic. And there's the rub. Not only is Unilever the only party legally allowed to use the word POPSICLE® for anything—they are also legally obliged to defend any infringement on their trademark if they hope to keep it. As my friend Adam Prizio explained to me (his law practice, Law for Food, specializes in helping food producers and farmers), the law is concerned with the situation in which somebody might be confused into believing that People's Pops are a Unilever product, and there are lots of reasons why Unilever wouldn't want that. "It's a problem," Adam said, "because the term has entered into the vernacular but retains its status as a trademark. So an odd consequence of this situation is that I think you can buy things called 'popsicle sticks' but you can't make 'popsicles' with them for commercial use."

Although the trademark has largely become generic, it's nevertheless still enforceable within the commercial sector in which it originated. And it must be enforced unless Unilever wants to risk losing the trademark, which for two billion reasons each year, it obviously doesn't. For the company, the expense of taking us to court, if it came to that, is fully worth it.

To us, it isn't. So we replaced every "popsicle" on our blog with "ice pop," a task made easier by the fact that Unilever's lawyers had FedExed us 17 pages of our blog with every infringement circled. We repainted the word "popsicle" on the back wall of our shop and cut the -icle off our rubber stamp.

Look at us, threatening the big boys! Don't worry. We promise that whatever they're called, our ice pops still taste better.