Boxed In 

Baskin-Robbins' latest lawsuit against an independent operator takes the cake.

How far will Baskin-Robbins go to freeze out a small competitor?

The ice cream giant will go to chilling lengths, if you ask Jo Jensen, owner of Santa Barbara Ice Creamery, located at 2502 N. Campbell Ave.

A few years back, I wrote about Jensen's plight ("The Big Chill," Nov. 30, 2000). For more than 15 years, she loyally ran a Baskin-Robbins franchise, but that came to an unhappy end when B&R tossed her aside because, in the words of Baskin-Robbins attorney Charles Wirken, "the store wasn't a desirable facility in a desirable location any longer."

After Baskin-Robbins declared her operation undesirable, Jensen was frantic, as you might expect from a single mom, trying to get her daughter through high school, who was faced with losing her livelihood.

Jensen got on the Internet and discovered McConnell's Ice Cream of Santa Barbara, Calif., which has been supplying former franchisees in similar situations.

But Baskin-Robbins wasn't content to let Jensen rebuild her store. They sued under a clause in her contract that forbade her to own or operate an ice cream store in the same location for two years after they stripped her of the franchise.

Having competition in the area was a problem for Baskin-Robbins, Wirken says, because "they wanted to enter the market again at some other location in that area, and there's another store up on Speedway and Tucson Boulevard, which isn't that far away."

Under mounting legal pressure, Jensen sold the store to an acquaintance and continued to work there as an employee, which was good enough for Superior Court Judge Michael Brown, who ruled against Baskin-Robbins in July 2000.

Now, more than three years later, Baskin-Robbins is bringing more legal action against Jensen, who recently bought back the store. Baskin-Robbins' Wirken has sued Jensen in federal court, alleging that she infringed on a Baskin-Robbins copyright on cake boxes--a copyright that the company, through Wirken's office, didn't even formally apply for until April of this year, just a few weeks before they filed suit against Jensen. (According to Wirken, a company can claim a copyright without filing with the federal government.)

When the dust settled from the last legal fight, Jensen still had a bunch of cake boxes that the corporate office didn't buy back from her when they stripped her of the franchise. She maintains the franchise had an obligation to buy them back; Wirken says it was her responsibility to sell them to Baskin-Robbins.

Stuck with the boxes, Jensen blacked out the Baskin-Robbins name, slapped on a Santa Barbara Ice Creamery sticker and used them to package her ice cream cakes.

In court filings, Wirken says Santa Barbara customers have been hoodwinked into thinking they were getting a Baskin-Robbins cake instead of one prepared by an independent operator.

"Our primary objective was to stop her use of the boxes," says Wirken, who says the corporation has to protect its brand. "The box is a distinctive piece of artwork."

Given the number of clippings on the wall detailing Jensen's bitter fight with the ice cream giant, it's hard to imagine too much confusion about the brand available at the store.

Jensen is fighting back in court, but it's not like she has the deep pockets of an international corporation. She's had plenty of challenges just keeping the doors open, dealing with everything from equipment breakdowns to the recent road construction at Campbell and Grant Road.

Santa Barbara's regular customers are say Baskin-Robbins' legal fight is going to cost them more customers than any confusion about cake boxes. Vicki Hart, an occasional Weekly contributor who lives near the store, says she's so disgusted by Baskin-Robbins that she'll never walk into one of their ice cream parlors again.

Far be it for me to encourage Weekly readers to give a cold shoulder to B&R. After all, y'all can make your own judgment about whom you want to support in a competitive marketplace.

But if you'd like to help out a local merchant who's under assault from an unforgiving multinational, you should pop in to the Santa Barbara Ice Creamery for a scoop of ice cream. It's tough to imagine a better justification for the extra calories.

The Campbell/Grant intersection is all fixed up and the merchants along Campbell Avenue are working on a major makeover, so there's plenty to check out besides Santa Barbara. And if you love ice cream, you won't regret stopping by; the flavors are downright scrump-dilly-icious.

Oh, man--that isn't a trademark violation, is it?

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