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Court Rules Against Polar B’ar Ice Cream in Battle with Klondike

May 4, 1987

WASHINGTON (AP) _ The maker of Polar B’ar ice cream bars took a licking today before the Supreme Court in a battle with the manufacturer of Klondike bars over trademarks and wrapper design.

The court, without comment, let stand a ruling that prohibits Polar B’ar from using a wrapper resembling the Klondike package. The ruling that was left intact also denies Polar B’ar exclusive trademark rights to that name.

Kraft Inc., with headquarters in Glenview, Ill., sells the Polar B’ar. Klondikes are made by AmBRIT Inc., which is based in Clearwater, Fla.

The 11th U.S. Circuit Court of Appeals ruled last December that Polar B’ars may not have images of polar bears on their wrappers in imitation of the Klondike design.

The appeals court also said that Polar B’ars may use the color royal blue on their silver foil wrappers only if it does not cause confusion with the Klondike product.

″Kraft is precluded from using a foil wrapper with an overall appearance that is confusingly similar″ to the Klondike wrapper, the appeals court said.

The appeals court ordered a federal judge to determine what damages if any Kraft must pay AmBRIT for imitating the Klondike wrapper.

The appeals court also canceled Kraft’s Polar B’ar trademark because the the name had been abandoned from 1932 until Kraft began using it again to market its new ice cream bar in 1979.

Southern Dairies, which later merged with Kraft, had sold an ice cream novelty under the Polar B’ar trademark from 1929 to 1932.

AmBRIT formerly was known as the Isaly Company, which began in the 19th century as a family-owned dairy in eastern Ohio and western Pennsylvania.

Isaly started making the five-ounce, chocolate covered Klondike bars in 1928 and sold them in Ohio, Pennsylvania and West Virginia until 1978.

The company then began to look for new markets and signed an agreement with Kraft to distribute Klondikes in Florida.

Kraft wanted to take over the company or package Klondikes under Kraft’s own Sealtest brand ice cream label, but Isaly refused.

Kraft began to develop the Polar B’ar in late 1979 with a package intended to resemble Klondike. Kraft ended its agreement to distribute Klondikes in 1982.

Those developments prompted AmBRIT to sue, charging Kraft with infringing the Klondike trademark and with unfair competition.

In appealing to the Supreme Court, Kraft said the 11th Circuit court ruled that the wrappers are confusingly similar based on the testimony of ″only four people out of the millions of chocolate-covered ice cream bar purchasers.″

The 11th Circuit court said the four customers, in effect, were only the tip of the iceberg. It is likely that many more who were confused never realized they were confused or chose not to complain to AmBRIT, the appeals court said.

The case is Kraft vs. AmBRIT, 86-1443.

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