12
The Prison of Resentment
IN EVERY LEGAL DISPUTE there exist three truths: the plaintiff’s truth, the defendant’s truth, and what actually happened. On the battleground where pride, power, and money are challenged, courtroom adversaries care less about discovering that third truth than they do about winning their case. During the long-running war establishing who was the dominant sibling, victory was everything to Will Keith and John Harvey Kellogg. That grudge match became codified in the annals of law on August 11, 1910, when Will filed a bill of complaint against John in the Circuit and Chancery Court of Calhoun County, Michigan. His petition requested a permanent injunction against the doctor’s food company and a judgment of $100,000 (or $2.57 million in 2016) in damages. It was the opening salvo in what turned out to be a ten-year battle.1
Will’s personal relationship with John may have been complicated but, from a business standpoint, the reasons undergirding his legal attack were simple. In 1908, shortly after his Battle Creek Toasted Corn Flake Company began to ascend under its new name, “The Kellogg’s Toasted Corn Flake Company,” the doctor aggressively marketed two of his own “new cereals”: rice flakes and “sterilized” wheat bran flakes. Instead of using the old “Sanitas” or “Sanitarium Foods” labels, which he had created and used for more than twenty-five years to avoid charges of self-promotion from the medical profession, John was now selling them under the banner of “The Kellogg’s Food Company of Battle Creek.” Will charged that John was infringing on his brand name by deliberately confusing the public and taking advantage of the investment of labor, advertising, and money he had made in marketing his “Kellogg’s cereal.” Only a few days later, John filed a countersuit claiming there was no infringement of Will’s rights and, in fact, the wrong had been committed against him; to wit, John’s lawyers claimed, John was the “real” Kellogg known throughout the world as the great healer, dietary expert, and the creator of flaked cereals.2
While preparing the lawsuit, Will confided to his son John Leonard that he had an “airtight case” considering he had already paid his brother a great deal of money, both in cash and stock shares in the Battle Creek Toasted Corn Flake Company for “the exclusive right within the United States to manufacture, sell and deal in said certain food products.”3 Never one to leave anything to chance when it came to his business, however, Will instructed his lawyers to enlist scores of housewives, businessmen, grocers, food brokers and jobbers for testimony on how John’s strong-arm tactics were hurting Will’s company. Will alleged that Dr. Kellogg’s flaked cereals were intentionally packaged in boxes nearly identical to those containing his famous “W.K. Kellogg’s Toasted Corn Flakes.” The confusing packaging resulted in grocers ordering and selling both products, side by side, assuming they were made by the same company. Worse, in Will’s estimation, customers too often made the wrong choice by purchasing a box of his brother’s tasteless cereal products, which potentially hurt the sales of his tastier brand. Equally compelling were Will’s “legal exhibits,” a mountain of attractive advertisements for his Kellogg’s Corn Flakes, which had appeared in hundreds of magazines and newspapers across the nation. Will’s superior product backed by intensive sales efforts and a more than $2 million investment (about $51.4 million in 2016) for advertising, his legal brief contended, were the reasons behind the American public’s allegiance to products labeled “Kellogg.”4
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EACH BROTHER’S STATE OF MIND merits consideration. Why would two close relatives embark upon such a destructive course? For John, the timing could not have been worse. On November 10, 1907, after years of harmful accusations, deceitful smears of his reputation, and vicious backbiting, he was permanently expelled from the Seventh-day Adventist Church, the faith and guiding light of his spiritual life. John’s letters to sympathetic religious brethren throughout the ordeal articulate his depression and anxiety during the traumatic series of events.5 Historian Richard Schwarz later contended that John “was never his former buoyant, enthusiastic self in the years after his expulsion from the Adventist church…[but] the manufacture and promotion of his food creations served, at least in part, to fill…these needs.”6 John’s pride of authorship over flaked cereals, combined with his envy over Will’s success in selling them so profitably, may well have been part of the equation. There exists, however, much evidence to argue against the claim that the doctor was “never his former buoyant, enthusiastic self” after his excommunication. An alternative explanation is that at some deeply rooted level John enjoyed or, at least, thrived on the many conflicts he engaged in and provoked during his long life, especially those involving Will. Fraternal conflict, in a strange way, energized Dr. Kellogg and stimulated his creative juices even if it came at a huge cost to those who loved or worked with him. Fighting with Will was one of the signal constants of his inner, psychic life, from childhood to old age.7
In Will’s defense, it is easier to understand why he retaliated against his older brother. To use his own words, Will was “sick and tired of this controversy” and, imbued with a newfound confidence, was ready to right what he perceived to be wrongs.8 Will certainly experienced his brother’s hurtful actions on a personal level, but he was far more focused on how the doctor’s shenanigans were harmful to his corporate identity. He acted as most modern businessmen do against those trespassing on their profits: he took John to court. In the decades that followed, Will Kellogg rarely, if ever, tolerated slights or attacks against his company. He used the courts, threats of pulling his business from contractors or suppliers, and a wily behavior to decimate and dominate those he considered to be his—or his company’s—enemies, which in Will’s eyes were one and the same. In retrospect, it is tempting to suggest he saw these foes as psychological straw men representing his older brother. Whatever the battle, from the founding of his company in 1906 until the end of his life, Will usually won.
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JOHN HARVEY KELLOGG’S FIRST ENTRÉE into the food business, it may be recalled, began in 1877 with the founding of the Sanitarium Food Company. The firm initially manufactured Granola, oatmeal, graham- and fruit-based crackers, and whole grain cooked cereals.9 Sanitarium products were “wholesome” foods free of fillers, additives, animal fat, sugar, or salt preservatives, such as baking soda and sodium chloride. In the years that followed, the doctor, Will, Ella Eaton Kellogg, and a gaggle of assistants created many other new products, all of which were served and sold at the Sanitarium.10
In 1880, Will and William S. Sadler, then an eighteen-year-old San employee, urged John to consider marketing the products through individual retail stores, first in the Midwest and subsequently across the nation.11 Such an enterprise required a larger plant and greater output to meet the additional demand. This suggestion inspired the doctor to ask his Sanitarium board members for funds to build an enlarged food factory and a modern, well-equipped “food laboratory.” The San’s trustees, already concerned about John’s insatiable (and typically expensive) plans for expansion, voted against it. In short, the board “did not think it best to incur the expense of the necessary experimental work.”12 Rebuffed but not defeated, John invested his own funds into the cause. By 1889, Sanitarium Food sold forty-two different health products and appropriated, first, a barn behind the San, and, in 1898, a small freestanding “factory” to manufacture these wares, all under the competent supervision of Will. It was also around this time that John and Will established a separate company, the Sanitas Nut Food Company, which sold a line of nut butters and nut-based meat substitutes. Beginning in 1895, after they discovered how to make flaked cereal, the new Granose wheat flakes were sold under the Sanitas label.13
Always too busy with the next conquest to pay attention to the one he had just begun, John was sloppy in his administration of the two food companies (as well as his many other commercial concerns). As a result, there was much crossover in the production, bookkeeping, and marketing activities of these two firms. Less interested in maki
ng money for personal gain than he was in promoting biologic living, the doctor viewed both companies as cooperative extensions of the Sanitarium, which were “more or less associated and carried out under a common management.”14
Dr. Kellogg was, of course, aware of the vast financial opportunities in food production even though he disingenuously told his Adventist Church commanders that the endeavor was merely a means “to support the entire denominational work.” In June of 1896, for example, he told Ellen White that he was “so busy I can do but very little in the way of pushing it…my brother, Will, earns the money for me to give away, while I give my time to the Sanitarium.”15 A few years later, in a letter to Ellen in December of 1898, John again downplayed the finances of the food company as he endorsed his brother Will as “one of the most faithful, careful, painstaking persons I have ever met…[and someone who] uncomplainingly carries a very heavy load of burdens.”16
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DESPITE JOHN’S CLAIM OF fraternal harmony and benevolent management, Will and John were actively engaged in various food fights. Matters became even more strained when other companies cashing in on the ready-to-eat cereal boom began to subvert John’s patent for flaked cereals.17 By the early 1900s, more than one hundred different companies were making their own version of flaked cereals, many of them earning huge profits that Will thought ought to be flowing into the Sanitarium and Sanitas companies’ coffers.
The shaky foundation under John’s flaked cereal patent was formally demonstrated in 1903, when the Kellogg brothers filed a lawsuit against the makers of Voigt Cream Flakes, the Voigt Milling Company, and Voigt Cereal Company of Grand Rapids, Michigan. Unfortunately for the Kelloggs, and largely as a function of the highly specific patent laws in the United States, a battery of defense attorneys proved that the Voigt Cream Flakes used a different manufacturing process than the one John filed in 1895. The Voigts eliminated the first step in the Kellogg method, which entailed soaking the grain in a water bath, and proceeded directly to aping the remaining elements of the recipe to produce their “baked, crisp and slightly brown flakes.” This distinction made all the legal difference because in order to prove patent infringement, the plaintiff must demonstrate that “the defendant used every element of the patent.”18
Ironically, the Voigts’ key witness was Henry Perky, the creator of Shredded Wheat and the man who walked away from a manufacturing deal with Dr. Kellogg in 1894 to found his own firm. The following year, John and Will developed what many considered to be a better product. Perky, however, saw the Kelloggs’ wheat flakes as nothing more than a slightly altered version of his creation. The recipes are similar and the main difference between Shredded Wheat biscuits and John’s wheat flakes was, essentially, the cereals’ distinct shapes. But because John’s process did not follow Perky’s recipe to the letter, it was not legally considered patent theft. The aggrieved Perky played turn-around on Will and John by demonstrating this very point during the Kellogg v. Voigt trial. The court decided in the Voigts’ favor in 1903.
After a denied appeal in 1905, Dr. Kellogg concluded he had no exclusivity over flaked cereals as long as others were unscrupulous enough to add or subtract their own alterations to the cooking process. Dr. Kellogg’s experience with the Voigt trial convinced him that the flaked bonanza he hoped would accrue to the San was hardly worth the trouble. The doctor shortsightedly resolved to sell his flaked cereal rights because other cereal firms “will pirate them anyhow.”19
Another reason John wanted to get out of the cereal business was tied to his professional reputation. After his close call of being expelled from the Calhoun County Medical Society in 1885, he had long fretted about being seen as engaging in unethical practices or as an outright quack by the more staid and scientifically based American medical profession. John would later testify under oath that he “thought it was important to do nothing of any sort that would touch even the more sensitive sensibilities or give any occasion…for thinking I was actuated by commercial or financial motives.”20 Revisionist historians have incorrectly labeled Dr. Kellogg as a charlatan. The truth of the matter, however, is that while some doctors disagreed with his more outlandish ideas, he was considered by many others to be a fine physician and surgeon, which is exactly the reputation John most desired. Consequently, he was eager to avoid any hint of impropriety, let alone engage in the Barnumesque salesmanship characterizing the cereal trade during the first decade of the twentieth century.
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IT WAS IN THIS CONTEXT that Will took the first steps toward changing his life and the way the world eats breakfast. In June 1905, he took a deep breath, summoned up the courage to face his domineering brother, and offered to buy the cereal business outright. Will’s timing could not have been better. Aside from the invalidation of his patent for flaked cereals, the restrictions placed upon him by the medical profession, and a growing disinterest in the commerce of food, the doctor was deeply in debt and needed money badly to shore up the Sanitarium, his medical school, his mission, and many other ventures.21 What John’s signature on the dotted line did not guarantee, however, was a cease-fire from his constant sniping, interference, and competitive ventures aimed directly at Will and his newborn company.22
In 1906, Will began pushing the boundaries of John’s “Sanitas” brand name by “signing” the cereal boxes and warning customers against “imitators.” Credit 94
After signing the deal in January 1906 and resigning from John’s Sanitas Foods Company, Will Kellogg worked doggedly to manufacture his cereal, which was, confusingly, still labeled as “Sanitas Toasted Corn Flakes.” He realized he needed a better brand name to distinguish his product from all the imitators crowding the market. On March 8, 1906, a few weeks after he changed the name of his cereal from Korn Krisp to Corn Flakes, Will wrote to Arch Shaw:
The following is a matter I would like you to especially consider: What would you think of calling these flakes “Kellogg Corn Flakes” instead of Sanitas Corn Flakes, and then using a signature somewhere on the package similar to the attached? In thinking of this matter, don’t take into consideration for a moment that I am ambitious to have my name appear in this way. The only thing I am interested in is the business that will result. I have not spoken to Dr. J.H. about the matter, but I am sure he would object to the plan and he would suggest that the inference would be that it’s his corn flakes, but the signature on the package ought to take away this objection. I am exceedingly anxious to do this just right and want the benefit of all the help I can get in making the decision.23
By the fall of 1906, Will’s boxes of the still confusingly labeled “Sanitas Toasted Corn Flakes” began to include his bold signature and the promise, “Beware of imitations. None genuine without this signature.”24 In retrospect, this was not nearly as bold a move as one might suspect at first glance. Beginning in 1903, and with John’s permission, the brothers pulled a bit of signatory legerdemain by affixing Will’s signature to many of the other Sanitas Nut Food products (but not the wheat flakes) under the phrase “None Genuine Without This Signature.” This was less a formal acknowledgment of Will’s contribution to the products than it was a protective trademark. John egocentrically reasoned that few people would be able to distinguish W.K.’s signature from his, thus affording him the credit he craved and protecting him against inflaming the medical profession.25
A spring 1907 Sanitas Toasted Corn Flakes advertisement (only a few months before changing the name to “Kellogg’s Toasted Corn Flakes”) boldly featuring Will’s signature and promising his customers the “genuine” product Credit 95
Around this same time, John learned of still another appropriation of his name in the dietary marketplace, which was far more threatening to his reputation and demanded immediate action. An unrelated quack named Prof. Frank Kellogg opened up a company in Battle Creek to sell “anti-obesity pills.” His pills were, at best, useless and, if taken to excess, a potential cause of dehydration and metabolic havoc.26 As John later declared
on the witness stand, with good reason:
I have suffered much from the advertising of an obesity cure by Frank Kellogg and I was continually receiving letters censuring me because the remedy did not accomplish what it was recommended to do, occasionally personal visits, threatening violence, because they had been badly swindled. I have a stack of letters two or three feet high because of this man’s advertising. Sometimes he actually used my initials. Usually he used his own, and I was held responsible for that thing. I appealed to the post office authorities to protect me, but they were not able to do anything, so I thought if I was going to start a food company it would be a little more than I could bear. That was the way I happened to put “Kellogg” into the firm name.27
In the early summer of 1907, while John was in Europe, Will took an even bolder step by formally changing the firm’s name from the “Battle Creek Toasted Corn Flake Company” to the “Kellogg Toasted Corn Flake Company.”28 Will knew that John’s long-distance absence was the only time he could successfully make such a daring motion without suffering the caustic effects of John’s obstructionism.29 The company’s board of directors responded enthusiastically and, upon their approval, Will solemnly promised them “there would be no occasion to expect that he would use his name in private enterprises in any way that would be disastrous to the Toasted Corn Flake Co….[and] would therefore operate to his financial detriment.”30 Soon after the meeting ended, Will spread the word to the nation’s grocers:
Don’t delay in sending your order to the jobber. See that you get the Corn Flakes with “W.K. Kellogg” [in facsimile] on the package. Kellogg’s Corn Flakes was placed on the market as Sanitas Corn Flakes. We’re going to drop the word Sanitas and call it Kellogg’s Toasted Corn Flakes thereafter. This name protects both you and us better than the old one.31
The Kelloggs Page 31