United States: Skippy v. Skippy: The Great Peanut Butter Trademark Wars

Last Updated: March 12 2014
Article by David A. Kluft
Skippy hates with line

Cartoon from the Skippy.com website

According to the National Peanut Board, March is not only National Peanut Month, but it contains National Peanut Butter Lover's Day and National Peanut Cluster Day. That makes March a good time to remember one of the longest running battles in trademark law history, a dispute that began when the second Roosevelt was President and ended when the second Bush was President. It was all about peanut butter.

Crosby's Skippy

1931 Skippy Candy Bar

1931 Skippy Candy Bar

In 1923, Percy L. Crosby created a comic strip for Life Magazine called Skippy, featuring a feisty urban-dwelling youngster who liked to paint fences. Although now a cultural footnote, Skippy was an inspiration for Charles Schulz's Peanuts and was once nearly as famous. Skippy was syndicated nationally for two decades, appeared on a Wheaties box and a U.S. postage stamp, and was made into a 1931 Academy Award-winning film.

Crosby became very wealthy. Doing business as Skippy, Inc., he registered Skippy as a trademark in 1925, and then licensed the mark for branded toys, games, trading cards, candy bars, school supplies, clothing and even Skippy-brand bread.

But not peanut butter.

Rosefield and the Birth of Commercial Peanut Butter

Skippy Fence
Rosefield's peanut butter packaging circa 1944

So how did we get Skippy peanut butter? The mass commercial distribution of peanut butter began in earnest in 1922, when California businessman Joseph L. Rosefield developed a hydrogenation method to prevent the peanut oil from separating from the other ingredients. Rosefield licensed the hydrogenation process to the Chicago manufacturers of the Peter Pan brand and also sold his own "Luncheon Brand" peanut butter in California.

But in 1932, Rosefield decided to change his brand name to "Skippy." This decision came right on the heels of the Skippy comic strip's Hollywood success and, given the packaging Rosefield decided to use, one is hard-pressed to call it a coincidence. Rosefield's packaging employed faux-paint brush lettering reminiscent of Crosby's, and included a slatted fence and paint bucket strikingly similar to the comic strip's well-known mise en scène. Would this have been likely to confuse? Even today, Wikipedia incorrectly lists peanut butter as among the official Skippy comic licensed products.

Skippy v. Rosefield

In 1933, Rosefield attempted to register the Skippy mark for peanut butter and Crosby successfully opposed the registration. However, Rosefield nevertheless kept using the mark to sell peanut butter, along with the fence and paint bucket packaging.

1937 anti-Roosevelt cartoon by Crosby

1937 anti-Roosevelt cartoon by Crosby

Why did Crosby never sue? Perhaps it was because Rosefield's peanut butter was marketed primarily in California, far away from Crosby's New York home. Or perhaps it was because Crosby himself became increasingly pre-occupied with anti-Roosevelt politics, self-published books about communism, and what some claim were retaliatory investigations and audits by the FBI and IRS.

As Crosby's political engagement increased, his readership declined. Both his newspaper syndication contract and his federal trademark registration expired by 1945. In 1947, Crosby was involuntary institutionalized after an alleged suicide attempt, never again to emerge until his death two decades later. That same year, Rosefield finally was able to register the Skippy peanut butter mark without opposition under the newly passed Lanham Act.

Skippy v. CPC

Control of Skippy, Inc. eventually passed to Percy Crosby's daughter and heir, Joan Crosby Tibbetts, who continued to publish collections of old Skippy cartoons and arranged a limited number of merchandising deals. Meanwhile, ownership of the Skippy peanut butter brand was transferred from Rosefield to CPC International, Inc. In 1977, Crosby Tibbetts and CPC negotiated a co-existence agreement which, among other things, released CPC from liability for trademark infringement. The following year, Crosby Tibbetts re-registered the Skippy mark for cartoons without opposition from CPC. But this peace was short-lived.

In 1980, Crosby Tibbets sued CPC for trademark infringement in the Eastern District of Virginia. The court issued judgment for CPC on the grounds of estoppel and laches, but also held that the comic strip and peanut butter were very different goods that were unlikely to be confused, especially since, by that time, the peanut butter packaging no longer contained the fence and paint bucket motif. The Fourth Circuit affirmed and the Supreme Court denied certiorari.

CPC v. Skippy

Skippy Inc.'s enjoined snack food

Skippy Inc.'s enjoined snack food circa 1985

CPC may have thought that ended the matter, but Crosby Tibbets was just getting started. She wrote letters to federal agencies and elected officials accusing CPC of a criminal conspiracy. She sued CPC's lawyers in state court. She also told CPC that if it did not pay her a seven-figure licensing fee, she would enter the food market. CPC rejected these demands.

True to her word, in 1985 Crosby Tibbetts licensed her father's character for a Skippy-brand caramel popcorn and peanut snack. CPC quickly returned to the Eastern District of Virginia and, in 1986, that court found that the new product was likely to be confused with the Skippy peanut butter brand. The court enjoined Crosby Tibbets from selling Skippy-branded food products and from telling others that she had the right to merchandise Skippy-branded food products.

Skippy's Revenge

The dispute submerged for over a decade until the internet came along to get it going again. During the domain name gold rush of the 1990's, a vigilant Crosby Tibbets somehow beat CPC to the punch and registered Skippy.com in 1997.

life magazine with line

Temporarily enjoined cartoon and caption from Skippy.com

In 1998, Crosby Tibbetts' website went live with an all-out attack on CPC and others. It featured commentary on CPC's "theft," "fraud on the courts" and "piracy," crimes that were allegedly aided by what her father had referred to as President Roosevelt's "NRA [New Russian Administration] peanut butter code." Particular venom was reserved for the now-defunct law firm of Lord Day & Lord, which represented Crosby in the 1930's during his successful trademark opposition but then switched sides to represent CPC in the 70's and 80's. The site also contained a "legal notice" defiantly claiming ownership of the Skippy mark.

CPC marched back to court and argued that Crosby Tibbetts was in contempt of the earlier injunction, which prohibited her from claiming to have the right to license Skippy-branded food products. The District Court agreed and ordered that references to CPC and the lawsuits be removed from the site, including even a Life Magazine cartoon with the caption "Why is [CPC] bullying little Skippy once again?" However, in 2000, the Fourth Circuit reversed, holding that the entire website was non-commercial speech protected by the First Amendment. The content was fully restored and most of it is still up today, an electronic finger planted firmly in the eye of Skippy's perceived malefactors.

I Hope She Drowns in a Giant Vat of Peanut Butter

But even the stickiest trademark dispute has to get unstuck sometime. In 2002, CrosbyTibbetts played her final card and petitioned for cancellation of the Skippy peanut butter mark. The basis of the claim was the alleged discovery of new evidence demonstrating that Rosefield had obtained his 1947 Skippy peanut butter registration by fraud. But the TTAB and District Court found that the evidence was not new and that the claim was barred by res judicata. The Fourth Circuit affirmed and, on April 5, 2004, the Supreme Court denied Crosby Tibbetts' petition for certioriari.

That same day, an Associated Press article declared that the Skippy lawsuits were finally over. Crosby Tibbetts, then 71, was bloodied but unbowed. She vowed to continue her crusade in the court of public opinion and is still defiant of her critics, one of whom expressed her wish that Crosby Tibbetts "drowns in a giant vat of peanut butter." Ten years later, in 2014, Crosby Tibbetts is still advocating for enforcement of her father's rights and, of course, a Skippy peanut butter boycott. As the animated cartoon on Crosby Tibbets' website proudly touts to this day: "Skippy Hates Peenut Butter."

To view Foley Hoag's Trademark and Copyright Law Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions