Saturday, May 29, 2010

Cease and Desist!!

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”),” the letter 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, eleven-year-old Frank Epperson fixed himself some powdered soda and water and left the container outside with the stirring stick still in it. That unusually cold night in San Francisco, the mixture froze, and the first-ever “Epsicle” was born. Eighteen years later, now 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 eighty-five 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.

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 been genericized, it’s nevertheless still enforceable within the commercial sector in which it originated. And in fact it must be enforced, unless Unilever wants to risk losing the trademark, which for two billion reasons each year, they obviously don’t. The expense of taking us to court, if it came to that, is fully worth it to them.

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, whatever they’re called, our ice pops still taste better.

POSTMORTEM 06/01/10:

Wow, did this post get snapped up by the media.

Grub Street
Village Voice

(New York Magazine)

And look what else we found flaunting Unilever's dictates!

Sunday, May 23, 2010

Damned If You Do...

(This post was republished on the Atlantic Monthly's website here on June 10, 2010.)

Back a few months ago, when we were getting ready for the season, we did a bunch of research on packaging. We knew that unlike last year, when we packaged the pops in bulk in waxed paper (we were just doing markets then), this year we would need to switch on the professionalism, which meant individually packaging our pops for both retail and wholesale.

We really wanted to use some kind of “green” packaging—because god knows the world does not need more plastic—but the problem with the compostable stuff on the market right now is that it’s high in what’s called “water vapor transmission,” which it needs to be in order to decompose. Unfortunately, pops left to their own devices love nothing more than to shed moisture content as fast as inanimate objects possibly can (it’s called “freezer burn,” and if you’re not using gums and preservatives, it happens fast).This means we need a packaging solution that’s ultra low in water vapor transmission—which, as far as I know, knocks the compostable stuff out of the running. That’s the trade-off for not using preservatives in our pops: it seems like we have to resort to plastic to package them.

Damned if you do, damned if you don’t.

Beyond just its chemical properties, the other problem with corn-based compostable packaging, which to my understanding is most of what’s available in this country, is that, while it doesn’t depend as heavily on petroleum as plastics do, the genetically modified (what else is there?) corn used to make it is heavily fertilized with chemicals that are derived from petroleum. So the deception is just one layer removed.

Not to make plastic per se any less evil, BUT as Tom Outerbridge reminded me, most plastics are a byproduct of petroleum refining, so it’s not as though more or less oil will be drilled depending on demand for packaging. Furthermore, there are conflicting reports about the impact of producing plastic vs. biodegradable packaging. “To produce a film plastic material from trees is incredibly energy intensive, and Eucalyptus trees have their own mixed reputation as water-sucking poor-habitat-producing species, ” said Outerbridge, who established New York City’s composting program during his tenure at the Department of Sanitation and now works for a recycling company. A biodegradable bag in landfill may even produce more methane than a plastic landfill. Plastic does also produce methane as it biodegrades, but more slowly, over 450 years. (Again, damned if you do, damned if you don’t.) Still, Outerbridge concludes: “If you knew the pulp was coming from a sustainable forest and you could direct the package at the end of its life to a composting system, I expect that would be preferable.”

So….in the end, we bought plastic. Incidentally, it costs about half as much. We would've shelled out for better, but better didn't seem to exist. And in my defense, I thought we’d be able to recycle the plastic, and for weeks saved our spent wrappers for the recycling bin. Then I found out that once at the recycling facility, they were promptly separated out and carted off to the landfill. Foiled again!

It’s hard to recycle plastic in this town. The Whole Foods in Chelsea has a “Gimme 5” bin which is for #5 plastic; bottles, yogurt cups, etc.—but thin bags like ours don’t qualify. Outerbridge notes that in principle, polypropylene is a recyclable plastic, but polypro bags are not recyclable in terms of recycling programs available to New Yorkers, or most curbside recycling programs. Plastic cups may eventually be allowed in the NYC curbside recycling program if the City passes the new recycling law under consideration (up for review this summer/fall), but for our wrappers, there is no answer, for the foreseeable future anyway.

I can’t think of a way to tie this post up neatly. Seriously, people of the world—scientists, lawmakers, consumers, farmers, —what are we supposed to do?

Thursday, May 6, 2010

Our Celebrity Twins, According to Mike at United

For going on three summers now, we've had an early morning date every Saturday and Sunday with Mike, our dry ice supplier.

Mike has seen the three of us in all kinds of guises: ebullient, downcast, tired, hungover, fired-up, chipper, and most frequently, still a little drunk. His mien is always constant: a sort of Godfather-esque, strictly-business gruffness that melts into a rusty sort of charm when we show up.

Among his many quirks: he thinks Joel looks like Jeff Goldblum, Dave looks like Quentin Tarantino, and that I look like Helen Hunt.

Is he wrong? Not really. Especially when it comes to Joel.

Joel, admit it already!

Don't worry, we all think you are much handsomer than Jeff Goldblum!!

He's started making our receipts out to our doppelgängers, which makes me stupidly happy.

Hey, don't judge. Y'all get to sleep in on Saturday and Sunday mornings. We gotta get our kicks somewhere.