John’s behavior aside, his legal strategy was compelling and based on a two-pronged defense. First, he sought to demonstrate he was one of the most prominent physicians in the world. His credentials were, in fact, impeccable. The doctor testified he created a system of medicine that had cured or helped thousands of patients; moreover he was an internationally renowned authority on nutrition, exercise, and natural healing, and the founder of a medical school, nursing school, and school of cooking. He lectured on average three or more times a week, around the world, for more than forty years. He personally treated, by his “most conservative estimate,” more than 130,000 patients at the Battle Creek Sanitarium. “There is no town of any size in the United States,” he proudly stated, “that has not sent people to the Sanitarium, in fact from all parts of the world, Australia, New Zealand, South Africa, all parts of England and South America.”65
The doctor then unfurled his voluminous curriculum vitae, listing every single one of the hundreds of publications bearing his name, memberships in the most prestigious medical societies, and every other possible credit that testified to the luster of his reputation. He noted the long-distance routes his fame took because his popular monthly magazine, Good Health, sold ten to twenty thousand copies per month, amounting to more than five million copies over his forty-year editorship. His book sales were even more phenomenal, netting him $50,000 to $60,000 per year in royalties (about $1.11 million in 2016) and many of these volumes sold in the millions, not only in the United States but also in faraway lands where they were translated into multiple languages, including Swedish, Norwegian, French, German, Spanish, and Chinese.66 The point of this medical recitative was to demonstrate that when anyone in the world heard or read the word “Kellogg,” they immediately thought of John Harvey Kellogg, M.D., whether the name was listed on a box of Corn Flakes or at the bottom of a prescription pad.
The second prong of his defense was to minimize Will’s abilities and contributions, not only with the development of flaked cereals but, even more broadly, every culinary achievement made at the San while his younger brother worked there. Dr. Kellogg insisted that he was the sole inventor of a great many food products; the most significant, of course, was his development of flaked cereal, as evidenced by his United States federal patent on the process. The doctor also portrayed Will as mad for money while he was inspired neither by riches nor glory. Prompted by his lawyer Fred Chappell on this very point, the doctor testified that all of his work was guided by his sacred oath as a benevolent and caring physician. His only desire, he insisted, was “to benefit humanity.”67 More wounding, John repeatedly asserted that Will Kellogg was nothing more than his lackey, a dull cipher and order taker who assisted him as he worked toward becoming the inventor of flaked cereal:
Will K. Kellogg was a bookkeeper and the business manager of the little business that was carried on. He worked for me as a bookkeeper and looking after my private affairs before we began the food business….I usually wrote on a slip of paper or dictated a note giving directions for the experiment and either sent it directly to the laboratory or gave it to my brother, W.K. Kellogg, and he passed it to the laboratory. Very often, I went there myself and assisted and gave verbal directions, sometimes by telephone.68
The doctor also attacked Will’s practice of “signing” boxes of his Corn Flakes as a blatant means of riding on John’s coattails and exploiting his valuable good name.69 John asserted that by rights he could make formal claim to owning the now famous W. K. Kellogg signature as a trademark. After all, he reasoned, Will’s signature appeared first on the labels of many of the doctor’s Sanitas Foods Company products, such as Malted Nuts, with the express warning, “Beware of Imitations. None genuine without this signature, W. K. Kellogg.” When cross-examined, John descended into a morass of dissembling:
After we began the Will K. Kellogg signature we made products, which did not bear the signature. Corn Flakes did not carry the signature of Will K. Kellogg at that time. There was nothing wrong with Corn Flakes. I used this “None genuine without the signature Will K. Kellogg,” as a means of designation and as a trademark and for this particular article that trademark was adopted, but it was not adopted for certain other articles. I say that that was adopted by the [J.H.’s Sanitas] company. Will K. Kellogg did it while in my employ and I did it because he worked for me and he asked my consent to do it and I agreed to do it because it seemed to be necessary, because imitations were being brought out.70
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WILL, ON THE OTHER HAND, was a terrific witness.71 He explained how the doctor deliberately imitated and capitalized on his advertising, marketing, and production, which made Kellogg’s Corn Flakes the favorite of millions of Americans. Will also noted that there were millions of dollars at stake in lost sales and market oversaturation that, as the fiduciary of the W. K. Kellogg Company, he could not possibly allow to happen. His quiet reserve and legendary self-control guided his entire testimony and, ultimately, his version of the events carried the day.
In almost every answer he offered, Will shaded the truth to reflect his favor. For example, when asked by Dr. Kellogg’s lawyers about the doctor’s credentials, Will disingenuously stated under oath “that even to this day [he] didn’t know that Dr. Kellogg had any reputation [as] a dietician or as an innovator in food products, health foods, and the improvement of diet.” When asked about how many people might confuse his Corn Flakes as a product endorsed by the famous doctor, especially among the Seventh-day Adventist community, Will replied, “Why, Mr. Chappell, I have no way of knowing as to what number of Seventh-day Adventists would say that or know that.”72
At other points in his testimony, Will feigned absolutely no recollections of key events in his work with his older brother. Will mastered a courtroom version of the boxer Muhammad Ali’s famed “rope-a-dope” technique and exhausted (and outsmarted) the opposing lawyers by settling back in his chair and replying, “I couldn’t state” or “I don’t know” to any question that contained the power to disprove or minimize Will’s version of the facts. When queried about the positive statements he made in the past about the doctor’s invention of flaked cereals, Will replied, “I think I did [make such a statement] but I am not positive, I couldn’t say.” Even when directly asked “and is it still true, is it not?” Will calmly replied, “No, at least some matters would be changed I think.”
Similarly, when Will was asked questions about his salary compensation at the San, he vaguely replied, “I am unable to state the time. It was so long ago.” These answers seem especially suspect given Will’s prodigious and near photographic memory for financial facts and figures, from the cost of a bushel of corn to his boxing clerk’s weekly salary. After John’s lawyers confronted Will with memoranda he wrote to his brother about various food concoctions and products, circa 1906–1907, Will denied their veracity, “I have no recollection in regard to it either as to the note or to the date. It is dated in pencil.” John’s lawyers then waved pages of company minutes, in which Will first proposed changing his company’s name to the Kellogg’s Toasted Corn Flakes Company. Will questioned their authenticity, too.
He even denied statements he made in earlier depositions: “I am unable to state positively whether or not this is my testimony. I have not taken the time to read it all through. There are several pages here.”73 The doctor must have squirmed in anger while seated at the defense table, forced to listen to Will’s misleading testimony. In reprisal, John ordered his lawyers to expose Will’s carefully rehearsed, legalistic trickery by accusing him of perjury. Judge North declined to sustain such objections.74
More important to Will’s case was establishing that he co-invented flaked cereals with John. At several junctures, Will complained about his brother’s domineering and credit-grabbing ways:
I stated that I did the work as business manager of the Sanitarium and that I got no glory and very little money….I think he [Dr. Kellogg] has been trying to get some glory recently….We were c
onnected together. We were doing business together and some of the formulae we worked out and some I did and he made suggestions and I made suggestions and I think he took most of the glory for the work that I did of that sort. I wrote a great many hundreds of notes for experiments to be conducted and carried out….The doctor took all the glory for the invention. I never received any glory for invention or any credit. Doctor did….I contend now as I did at that time that I had invented the product [flaked cereals] with Dr. Kellogg jointly. The process was patented in his name and he got the credit.75
Will stipulated that the original flakes were made of wheat and which John wanted to grind into crumbs, rather than flakes, until Will stopped him. To make his sting even sharper, Will testified that the doctor’s flakes were neither terribly tasty nor popular. It was he who discovered that corn made for a far more appetizing cereal. It was he who, through trial and error, developed new baking methods and designed new ovens to toast the flakes to perfection. Most importantly, he was the chef who added John’s forbidden ingredients of sugar and salt to spin out those deliciously golden flakes of corn, which, as his advertisements heralded, “won its favor through its flavor.” When asked if the doctor had not helped in this process, Will replied, “He looked the product over and may have made some suggestions. I don’t recall that he made any, though he may have made some.”76
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ON FEBRUARY 15, 1911, the two legal teams somehow found a third way to reach an out-of-court settlement. The brothers reconciled and avoided the inevitable press circus, which they knew threatened their reputations and commercial interests.77 In exchange for an acknowledgment that his company was the “sole and exclusive owner of the trade-name or mark ‘Kellogg’s’ on prepared food products and goods of a similar character,” Will granted his brother’s request to continue to call his company the “Kellogg Food Company,” but only on company letterhead and never conspicuously displayed on his cereal boxes. In the spirit of a Talmudic truce, Will further consented to the doctor printing his facsimile signature, “John Harvey Kellogg,” on the boxes of his flaked cereal food cartons, only once per product and in small letters “on the side or end, but not on either face of the carton.”78
John managed to snatch a bit of victory by insisting on retaining the rights to manufacture and sell a version of Corn Flakes outside the United States. In consideration of his older brother’s goodwill, Will agreed to pay John $10,000 in cash (about $257,000 in 2016). Will added more sugar to the deal by allowing John to sell back the remaining 5,704 shares of Will’s company stock that his American Medical Missionary College owned at the inflated price of $15 (about $386 in 2016) per share.79
Predictably, the accord did not last very long. John continued to alternately compliment Will for his success and then berate him, only to follow such outbursts with written apologies such as one in July of 1911, explaining “the unpleasant word that I used was a slip of the tongue, as I intended another word, which, however, might have been no better.”80 The doctor constantly nibbled around the edges of Will’s cereal market. And yet for every round the doctor fired at the W. K. Kellogg Toasted Corn Flake Company, Will retaliated with an even greater force. No assault of Will’s was more calculated or better aimed than what John and his legal team deemed as “a vindictive plot to ‘get’ the older brother.” The national press nicknamed this attack “The Battle of the Bran.”81
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IT WAS ALMOST PREDESTINED that a man so fixated on the frequent evacuation of soft, bulky stools would become enamored with one of nature’s finest laxatives, wheat bran. In his never-ending war against constipation, John advised his patients to consume large bowls of this hard outer layer of the wheat grain, which is rich in fiber, essential fatty acids, protein, vitamins, and minerals. In 1908, Dr. Kellogg’s Sanitas Nut Food Company began manufacturing a product he called “sterilized bran,” which capitalized on the public’s interest in consuming sanitary, clean foods and a burning desire to cure constipation. Initially, Dr. Kellogg offered his “Battle Creek System Sterilized Bran,” and, later, “Kellogg’s Sterilized Bran,” exclusively to his patients at the Sanitarium. In 1908, he sold fewer than 10,000 boxes; only a year later, in 1909, he sold more than 100,000 boxes.
By 1915, John was employing the same mass advertising techniques pioneered by his brother with full-page advertisements in major magazines such as Good Housekeeping and Ladies’ Home Journal. He also held forth by lecturing at well-heeled department stores across the nation, including J. L. Hudson’s of Detroit and Marshall Field’s of Chicago. The strategy worked: that year, the doctor sold more than 250,000 boxes of bran, and by 1916 sales climbed to over 600,000 boxes. Of course, Dr. Kellogg insisted that his bran cereal had in no way violated his agreement with Will because that agreement centered on the production of Corn Flakes, which the wheat bran cereal was clearly not, and more cogently because Will’s company did not even manufacture bran products at the time.82 Will still saw this as a worrisome issue. Specifically, of all the health foods John sold (a wide array of cereals, crackers, jams and jellies, laxatives, and nut-based meat substitutes), only the bran cereals boldly proclaimed the name “Kellogg” on the outer label. This marketing move, the doctor insisted, was necessary to assure his customers they were getting the original and best bran cereal products rather than imitations made by the “copycat” companies.83
Ironically, the “copycat” firm leading the charge in “The Battle of the Bran” was none other than Will Kellogg’s Toasted Corn Flake Company. In the fall of 1915, Will began selling “Kellogg’s Toasted Bran Flakes” and “Kellogg’s Flaked Bran,” both of which became instantly popular sellers. The following year, 1916, Will introduced a granulated bran cereal called “Kellogg’s All-Bran” (created by his son John Leonard Kellogg) and, in 1920, a crunchy, shredded version known as “Kellogg’s Bran Krumbles.” In a total turnabout of Will’s accusations and John’s underhanded methods, it was now Will who was confusing the public by directly competing with his brother’s Sterilized Bran products. And so, on August 13, 1916, John filed a restraining order against Will’s firm, which led to a trial during the spring of 1917, again in Judge North’s courtroom.84
Ever thoughtful about his judicial decisions, Walter North did not make a ruling until late 1917.85 Much to the doctor’s everlasting consternation, Judge North ruled in favor of the W. K. Kellogg Toasted Corn Flake Company on every single point. The decision was clear-cut and definitive: “I find that the facts and circumstances established by the proofs in this case are such as entitles the defendants to relief, whereby the plaintiffs and their agents, servants and representatives shall be enjoined and restrained from selling prepared foods as and for the products of the defendants, the Kellogg Toasted Corn Flake Company.”86 North not only dismissed every one of John’s complaints, he also decreed that Will’s company was entitled to all profits earned from John’s cereal products over the past decade and ruled that the trademark “Kellogg’s” was legally owned by Will’s company. John was ordered to stop “deceiving the public or the trade” and formally restrained from the use of his own surname on his foods, with the exception of being allowed to put the company name “Kellogg Food Company” in an inconspicuous place on the product’s box—as agreed to by the brothers in their brief peace treaty of 1911. Will’s victory seemed to be complete. He had finally vanquished his older brother.
Will Kellogg employed well-known cartoon characters such as Mutt and Jeff to offer advice on how to beat constipation and “Join the ‘Regulars.’ ” Credit 97
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IF ONLY THE DOCTOR WALKED AWAY from this decision and returned to his many medical responsibilities and projects. But he was incapable of doing so.87 Before the ink had a chance to dry on Judge North’s ruling, John foolishly instructed his lawyers to appeal the case to the Michigan State Supreme Court.88
Handing down their decision on December 21, 1920, the State of Michigan delivered Will Kellogg the best Christmas gift he could
ever hope for: all eight members of the court voted to uphold every single line of Judge North’s 1917 decision.89 Will now owned the exclusive right to the trade name “Kellogg” as well as all the profits his brother had previously made off of his Kellogg-labeled cereals. The court also ordered that John pay all of Will’s legal bills incurred during the drawn-out contretemps—a sum of more than $225,000 (or at least $2,660,000 in 2016). Will magnanimously told his brother to pay only the legal bills and that he would forgo the profits earned from John’s competing cereal company. Unwilling to accept even this act of kindness, John fussed, fumed, and wrote the check for the full amount so Will would have “no excuse for pestering me further.”90
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