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Federal Judge Bars Canfield’s Competitors from Calling Soda ‘Chocolate Fudge’

July 9, 1985 GMT

CHICAGO (AP) _ A federal judge granted the A.J. Canfield Co. a preliminary injunction Monday barring competitors from using the words ″chocolate fudge″ in products similar to its wildly successful chocolate-flavored diet drink.

U.S. District Judge Milton Shadur granted the request in a lawsuit Canfield brought against Vess Beverage Inc., of St. Louis. The judge put off entering a formal order for several days, but made the finding of fact in a written opinion.

″The $23 billion soft-drink industry is watching to see if we can stop the ’me-tooers (imitators),‴ said Alan Canfield, the company’s senior vice president. ″If we don’t, they may be all bring out their own.″

Don Schneeberger, president of Vess, said in a telephone interview Vess would appeal the ruling.

″Right now, the only thing we can’t do is use the words ‘Chocolate Fudge’ in the same line as diet soda,″ he added. ″But we can call our drink ‘Diet Chocolate Soda,’ for instance.″

Canfield said his company has a similar lawsuit pending against Consolidated Foods Co., of Chicago, which is marketing a diet chocolate soda as part of its Shasta line.

Canfield began marketing its ″Diet Chocolate Fudge Soda″ in 1972, and averaged sales of about 1.5 million cans each year. In January 1985, the company replaced its old sweetener with NutraSweet and began a $500,000 radio and television advertising campaign in Chicago.

But Canfield said what really made the product take off was a newspaper column by Bob Greene of the Chicago Tribune, who said it helped him keep off weight after a diet.

″I didn’t believe in the power of the press, but I do now,″ said Alan Canfield. ″That and the fact that about half of America is on a diet at any given time made this drink an incredible success.″

The column kicked off ″fudge fever,″ and the company sold 1.5 million cans in three weeks in late January and early February, Canfield said. In the last six months, Canfield has sold 75 million cans.

The product originally was distributed in the company’s five-state Midwestern region, but is now shipped to all 50 states and three foreign countries, Canfield said.