BOSTON -- A 3-year-old upscale ice cream war, temporarily frozen, has heated up again in federal court with upstart Ben & Jerry's Homemade Inc. of Waterbury, Vt., claiming unfair distribution policies by The Haagen-Dazs Co.
The suit involves 'superpremium' ice cream, which a Ben & Jerry's spokesman defined as 'high butterfat ice cream, generally sold in pints, retailing for $1.89-plus per pint.'
Ben & Jerry's initially sued giant Haagen-Dazs, a division of Pillsbury Co., in 1984, claiming Haagen-Dazs attempted to force distributors to stop carrying Ben & Jerry's products to supermarkets and other stores. If they did not drop Ben & Jerry's, the suit claimed, Haagen-Dazs threatened to yank its business from the distributors.
That lawsuit was settled out of court in March 1985, following an advertising campaign by Ben & Jerry's, aimed at the Pillsbury Doughboy mascot, that asked: 'What's the Dougboy Afraid Of?'
The 1985 agreement called for Haagen-Dazs to refrain from policies and actions that coerced distributors not to carry Ben & Jerry's products, said Fred Lager, general manager for Ben & Jerry's.
The new lawsuit, filed Monday in U.S. District Court in Boston, claims Haagen-Dazs and Pillsbury have violated the 1985 agreement. The suit seeks a preliminary injunction ordering that terms of the agreement be honored. No monetary damages were sought, Lager said.
'We've been told by our distributors that Haagen-Dazs and Pillsbury are calling them up and threatening to terminate the distributors if they do not sign agreements saying they will not carry other superpremiums,' Lager said.
A spokeswoman for Haagen-Dazs, headquartered in Woodbridge, N.J., said the ice cream maker had not read the lawsuit, and 'we couldn't respond to it anyway because it's in litigation.'
Asked if terms of the 1985 agreement were being honored, the spokeswoman said, 'absolutely.' She also referred to a two-year provision of the 1985 agreement, but did not elaborate.
Lager said 'two minor provisions' of the 1985 agreement had a two-year limitation, expiring in March 1987, but the rest was 'indefinite.' He said those two-year provisions said Haagen-Dazs would not terminate any distributor in Massachusetts and Connecticut that was carrying Ben & Jerry's, and that Ben & Jerry's would consult with Haagen-Dazs before launching another 'Doughboy' campaign.
'The new lawsuit has to do with threatening and coercion, which is specifically not allowed under the agreement,' Lager said. 'We know there is a two-year limitation on parts of the agreement.'
A Pillsbury lawyer said he could not respond until he studied the lawsuit.
Ben & Jerry's had sales of about $20 million last year year. Lager said its major distributor for the Boston area is Paul's Distributor of Canton, Mass.
Kim Warren, marketing director for Paul's, said her company recently received a notice from Haagen-Dazs, stating, 'That starting Jan. 1, 1988, Haagen-Dazs is going to be enforcing their loyalty policy.'
'As a distributor, that means that if you carry the Haagen-Dazs pints you cannot carry any lines that compete, according to their perception of competition,' Warren said.
