Between the late summer and early fall of 1907, “Kellogg’s Toasted Corn Flakes” made its official debut on the American scene with a blizzard of advertisements and many millions of bright green, red, and white boxes of cereal.32
August 1907: Finally and forever, “Kellogg’s Toasted Corn Flakes” Credit 96
In his lawsuit, John described how he was informed of the company’s name change, barely after stepping off the transatlantic steamship’s gangplank in New York. The doctor also stipulated his angry resolve to block the move, no matter what it took. Repeatedly, John referred to his younger brother as a “rascal.” Again, when reviewing all of the legal documents, these matters were not nearly as clear as John claimed. During a subsequent cross-examination, for example, John admitted that when he was first informed of Will’s motion to change the firm’s name to “Kellogg’s,” he failed to register a formal objection. From July through September of 1907, John affirmed under cross-examination, he received multiple stock reports, memoranda, and dividend checks with the words “Kellogg’s Toasted Corn Flake Company” emblazoned on them and, again, raised no complaints, especially upon cashing his dividend checks. As Will’s lawyers battered the doctor with hard evidence over his acquiescence to the name change, John confabulated under oath, “I was informed that—at any rate I was under the belief that there was no use for me to make any protest….I made no protest, no, I mean no formal protest.”33
Just as the brothers’ fight reached a boiling point, Will’s son John Leonard and Will and John’s nephew Wilfred were still employed by John as supervisors at the doctor’s Sanitas Nut Food Company, which continued to make nut and grain products long after John sold the rights to manufacture Corn Flakes to Will.34 In early 1908, Wilfred left the doctor’s Sanitas Nut Food Company to become the secretary of Will’s Battle Creek Toasted Corn Flake Company; that same year, Will’s son, John Leonard, weary (and wary) of working for his difficult uncle John, left the Sanitarium’s food venture to join his father’s firm. A few years later, John brazenly exploited this chronology in a countersuit against his brother claiming that John Leonard stole his trade secrets for a “sterilized bran” cereal and handed them over to Will, an allegation that never stuck.
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SOMETIME BETWEEN Christmas of 1907 and New Year’s Day 1908, the doctor resigned from the board of directors of Will’s Toasted Corn Flake Company.35 John’s stated reason was that he needed to focus upon the management duties of his own food firm. This decision was especially ill conceived given that running a complex business was not among his many talents. In early 1908, John escalated matters by informing Will about his intention to trademark the name “Kellogg’s” and change the name of his Sanitas Nut Food Company to “Kellogg’s Food Company.” The newly named company would sell his latest creation, flaked rice cereal and the original wheat flakes.36
This tactic enraged Will, especially because it was accompanied by an extortionist scheme the doctor offered in exchange for backing away from the name changing. In short, John demanded Will hand over $500,000 worth of stock in Will’s company in return for the exclusive rights to making rice and wheat flakes and John’s permission for Will to use the family name in his business. Even if Will accepted these outrageous terms, paying John’s ransom demand would require him to increase his company’s capitalization by an additional $1 million (or about $39 million in 2016); an especially difficult task in that Will had recently announced a 3-for-1 stock split to increase the company’s capitalization to $1 million after the July 4, 1907, factory fire and rebuilding effort.37
Utterly unaware of the consequences of his hostile actions, John wrote a “letter of peace” on January 20, 1908, reassuring his brother that his intentions were pure and honorable:
First of all I desire to state that I am not unmindful of the many years of loyal and brotherly assistance that you have given me in my work and the faithful and conscientious manner in which my personal affairs have been looked after….I have been too busy to express to you as I ought to have done my appreciation, but I wish you nevertheless to be sure that my appreciation has been greater and deeper than words ever could have expressed or than I now know how to express. If anything I have ever said or done has led you to feel that there was a lack of appreciation on my part, I sincerely regret and now apologize for the same….I trust that all the business relations between the Sanitas and the Toasted Corn Flake Company will be in every way friendly and amicable….I expect to make some blunders and to suffer for them. But I will do the best I can and will make the best of the consequences. I shall not knowingly permit anything to be done which I consider antagonistic to the legitimate interest of the Toasted Corn Flake Company….Certainly I have no malice in my heart toward anyone, least of all toward you. I have not intentionally said a word to do you harm or injustice. If anything I have said has seemed to you to have such an intent or purpose, I sincerely hope you will accept this statement as an utter disavowal of any such purpose and a refutation of any statement to the contrary which anyone can make; for what I have written above is a frank and sincere statement of my feeling in reference to our personal and business affairs, and of my appreciation of your personal interest and your valuable service to me and the interests with which I am connected. As Ever, your affectionate brother.38
Will responded by taking his elder brother to task. Although his January 29, 1908, letter of response began with the salutation “Dear Brother,” it was clear within a few sentences that “Dear” was only an expression of speech rather than a means of describing their relationship:
For twenty-two and one-half years, I had absolutely lost all my individuality in you. I tried to see things with your eyes and do things as you would do them. You know in your heart whether or not I am a rascal. You also know whether or not I would defraud anyone, under any circumstances. The fact that we worked together for so many years, would seem to be a reply to the above inquiry….You have told people that there was no break between you and I, but it begins to look to me as if there [is] going to be a breach, if there was not one already….I think I am justified, under the circumstances, in holding you responsible for the present unpleasant situation. It is unbecoming in either you or myself to allow ourselves to get into a condition of mind where we make uncomplimentary remarks, one of another….Were it not for the fact that I am under obligations to the stockholders of the Toasted Corn Flake Co., I want to assure you that in my present state of mind, I would sell out my holdings in Battle Creek and try some other climate.39
John continued to protest (too much) that the name change of his food company was a means to protect his reputation against charlatans like Frank J. Kellogg, the “obesity cure king,” as well as a German company, also named Sanitas, which made disinfectants all over Europe and North America. The doctor claimed that he did not want his health foods to be confused with quacks or smelly chemicals.40 Will, of course, saw right through his brother’s rationale. John’s jealousy over Will’s success burned brightest in early May of 1908 when he printed the following legend on his cereal boxes: “Sanitas Wheat Flakes is the only flaked product which has a legitimate pedigree.”41
Will, who was present at the birth of flaked cereals and played a critical role in their development, was offended by John’s duplicitous insinuation that his Corn Flakes were the nutritional equivalent of a bastard. In early May, Will protested, “It seems to me, Dr., that this puts the Toasted Corn Flake Company in a rather bad light. We have been claiming in all our advertisements originality and I certainly have been laboring under the impression that the Toasted Corn Flakes had a legitimate pedigree, and not an illegitimate one.”42
Writing to his lawyers on July 6, 1908, Will’s bitterness jumps off the page: “It is very apparent the sole purpose in the Dr.’s making this change is that he may be benefitted somewhat by the several hundred thousand dollars the Toasted Corn Flake Company has expended in advertising to make the name Kellogg’s of some value.” In the same
letter, Will explained that he was considering producing a line of wheat flakes to compete with the doctor’s version, even though he stood to make little money because Americans overwhelmingly preferred his Corn Flakes.43 Only two days later, on July 8, Will tried a different tack, solicitously offering to avoid any mention of the Battle Creek Sanitarium and its work on his products and to avoid trespassing on his older brother’s domain.44
The next day, July 9, Chappell and Earl, the law firm that represented both John and Will in various enterprises for years, withdrew their counsel from Will’s company, preferring, instead, to stick with the more famous elder brother. The lawyers closed their letter with some solid advice to Will: “We should regret to see any litigation or controversy between you people. Your interests should be together against the common enemy. You should in the language of Ben Franklin, ‘hang together,’ or you may, figuratively speaking, hang separately.”45
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JOHN ANTAGONIZED WILL once again at July’s end by announcing a grandiose plan to advertise his “Kellogg’s Toasted Wheat Flakes” with a series of public events and lectures in New York City and Chicago.46 Informing Will that he was tired of having his ideas so blatantly commercialized, the doctor insisted that using his name on his products was the “only way by which they may be protected.” John added that his flaked rice and wheat cereals were made from grains not covered in the contract he signed in January of 1906. Acting somewhat like a rascal himself, the doctor claimed he was not violating Will’s exclusive rights to sell Corn Flakes in the United States because their contract said nothing about mail order sales and pertained only to grocery stores. And for good measure, the doctor demanded Will remove his signature from his boxes to avoid confusing the public over who was the “real” Kellogg. John ended his missive with a scraggly olive branch: he suggested they settle their differences by consulting a “committee of arbitration.”47
Will exploded. On July 20, 1908, he wrote John a nine-page letter accusing John of running about Battle Creek telling mutual friends that Will’s firm would never succeed and lose bundles of cash for its investors. Will went on to explain the decisions they made together, dating back to 1903, on affixing Will’s signature on their various products. He reminded the doctor that in all their years in business together they never received a single complaint as to which Kellogg signed the box nor did his signature in any way sully or take advantage of Dr. Kellogg’s medical reputation. Will concluded his declaration of grievance with a slew of reasonable questions and claims:
If you were the Kellogg who was known to the public through the signature on the package, and feared that bad results would follow from the use of this name, why did you ever consent to my name appearing on the various packages of Sanitas Foods? And if you were harmed by this name appearing on the package, would you not have been likely to have referred to this harm, prior to the organization of the Toasted Corn Flake Co.?…In view of the fact that you have refrained for thirty years from allowing your name to be commercialized, it seems to me it is mighty unwise of you, at this late day, to decide to commercialize the name of Dr. J. H. Kellogg….I wish to state that it seems to me I have some claim upon the use of the word “Kellogg’s” as applied to cereals. I claim to have worked with you, nights and mornings, and overtime, without any compensation, in the matter of developing the first Granose flakes…for your information [I] will state at this writing, it is my full purpose to organize and get ready immediately for business the W. K. Kellogg Cereal Food Co. I am advised by competent attorneys that I have a perfect right to do this.48
Three days later, July 23, John again insisted that the rice and wheat flake cereals were entirely different from Will’s Corn Flakes and placing the name “Kellogg” on his cereal boxes was his only means to protect his trade rights against the same charlatans who threatened Will’s food business. The doctor added that his actions were “in no way to make war upon the Toasted Corn Flake Company or to do anything which ought to be regarded as hostile or injurious to it. I have taken the best legal advice obtainable in relation to equities and legal rights involved.”49 His only wish, he disingenuously claimed, was for a peaceful accord bound by the ties of fraternity and friendship.50
In reply, Will wrote an even longer, and far more exasperated, letter on the evening of July 26:
I am getting very sick and tired of this controversy and thinking it very unprofitable for either you or I. I am awfully busy with various matters and think I will not take the trouble to reply to any more of your communications. Much of your logic and many of your statements seem to me to be erroneous, there seems to be no prospect of our getting together and I think we had best agree to disagree.51
Will made one last-ditch attempt at peacemaking only a few days later, on August 7. After a meandering stroll around town to brace his nerves, he finally pointed himself into a direct path to his brother’s house. In the stifling summer heat, Will climbed the steps of the Residence’s porch, straw hat in hand, ready to plead his case once again. He was not given the courtesy of being invited inside or even offered a cool drink. The porch confab included a hostile John and an even more hostile Ella Eaton Kellogg, who rarely got along with her brother-in-law and often urged her husband to fire him.52
Will appealed to his brother about how his chances for a successful career of his own were dissolving with every obstruction John mounted. The confusion generated by these two competing cereal lines, Will predicted, would be disastrous for his fledgling company as well as for his brother’s food firm. Finally displaying a backbone to his domineering brother, Will explained that while he hoped to avoid the costly and potentially embarrassing option of litigation, he was prepared to go down that route if the doctor continued his attacks.53 The doctor softened a bit at his younger brother’s entreaties and the two apparently made a handshake agreement, whereby Will would pay John another $50,000 and more stock in exchange for his “cease and desist.” Before pen could be committed to paper, however, the doctor wriggled out of the deal.
The bickering, attacks, and counterattacks escalated for another two full years. Fueling the doctor’s angst was how, between 1909 and 1910, Will’s business exploded with profits, thanks to an excellent product, savvy marketing and sales techniques, and expenditures of more than $2 million ($51.4 million in 2016) for advertisements shouting about the wonders of Kellogg’s Corn Flakes. The only fly in Will’s increasingly rich bowl of cereal was his brother’s relentless attempts to piggyback on that success with his bland-tasting wheat and rice flakes sold under the same banner of “Kellogg’s.”54 By the summer of 1910, Will had had enough and told his lawyers to file their brief against his brother.
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WILL’S AND JOHN’S LAWSUITS reached the docket of Calhoun County Circuit Court in mid-August of 1910. The judge hearing the case was Walter North, a slight, round-shouldered, bespectacled man who walked with a stoop even when he was relatively young. Well regarded for his fairness, a facile mind, and an exhaustive knowledge of Michigan’s legal precedents, Judge North “worked hard all day and when evening came he always went home with a brief case loaded with briefs and records.” He was so dedicated to his judicial tasks that he typically ate lunch at his desk to “gain an extra half-hour to continue his work.”55 After digesting the legal briefs, Judge North denied Will’s request for an injunction on the grounds that it carried the potential to bankrupt the doctor’s business before the true merits of the case could be heard. He ordered a hearing in a court of equity and he would make his decision after a full declaration of all the facts.56
Representing Dr. Kellogg was a well-known attorney named Fred L. Chappell, a tall, thin man, with a sharp, stern gaze especially useful for staring down uncooperative witnesses during cross-examinations.57 Assisting Chappell was his partner and brother-in-law, Otis A. Earl.58 Both experts in patent law, they were members of the local lodge of Free Masons and, like the majority of the Battle Creek community, active members of the Republican Party.
59 Chappell and Earl were the same attorneys who had advised Will to simmer down and warned him that if a lawsuit did arise, they would side with his older brother, which, they insisted, Will would likely lose.
Will scoured the local and New York City bar associations before hiring W. H. Crichton Clarke. Trained in both law and medicine at George Washington University, Clarke was a renowned authority on patent, trademark, and copyright law. 60 Clarke performed so well in the Kellogg v. Kellogg trial that Will later appointed him as the Kellogg Company’s general counsel. Joining Clarke was John W. Bailey, an imposing man, “with a square jaw that sets like a steel trap when the occasion demands.”61 He was the type of self-made, result-driven man that Will Kellogg admired in others and considered himself to be. After graduating high school, Bailey rose from stoking the engines of Michigan Central locomotives to becoming the railway’s chief of freight business. He subsequently went to the University of Michigan Law School and served several terms as Battle Creek’s mayor, from 1890 to 1891, 1909 to 1911, 1913 to 1915, and 1927 until his death in 1929, no small feat for a Democrat in a rock-ribbed Republican town.62
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KELLOGG V. KELLOGG took more than a decade to resolve, beginning with the initial lawsuit filed by Will in 1910; a counterattack by John in 1917; and a final verdict by the Michigan Supreme Court in 1920. Yet even from the distance of a century and across the divide of neatly transcribed and typed words, one can almost hear the brothers’ voices, the cadence of their speech, and a shared propensity to shade the truth in a manner that often elided into lies in order to advance their case.
On the witness stand, John was equal parts bombastic, imperious, emotional, passionate, brilliant, and legitimately aggrieved. As his testimony proceeded, the doctor delivered crafty, tricky, and occasionally dishonest answers. Will coached his counsel to push John’s psychological buttons and provoke him with sharp questions that challenged the doctor’s sense of superiority. To such queries, John reliably lashed back with sarcastic responses. Even more cutting was his talent for mimicking the vocal patterns of his legal adversaries, an unsavory skill he used with Will when he wanted to put his brother in his place. In more reflective moments, John conceded he had a propensity to speak “too strongly,” even though he was “quite unconscious of it until afterwards.”63 Admittedly “strong-willed, pugnacious, controversial, and skeptical,” the doctor tried to “keep these unpleasant traits under reasonable control [but] when I get worn out they become conspicuous and I appear to very poor advantage.”64 During these legal proceedings, he was often worn out and tired. By all accounts, John was what lawyers routinely refer to as a “bad witness.” He consistently antagonized those charged with evaluating the veracity of his version of the events; to use modern parlance, he failed miserably at creating a believable narrative.
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