[Congressional Record Volume 146, Number 11 (Wednesday, February 9, 2000)]
[Senate]
[Pages S520-S521]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      PROTECTING SMALL BUSINESSES

  Mr. DORGAN. Mr. President, this morning there was a story in a daily 
newspaper in my State, the Bismarck Tribune, entitled ``National candy 
company takes on Mandan couple.'' It is a curious story, an interesting 
story, and one that is perhaps repeated all too often around the 
country. It concerns a type of business dispute in which one company 
alleges that another company is doing something that intrudes upon the 
rights of the first company.
  As corporations become larger through mergers and acquisitions, all 
too often we see big companies trying to muscle mom-and-pop businesses 
around. That is what I think this case is about.
  For those of us who care about small businesses and stand up for the 
rights of entrepreneurs, people who work hard, people who risk almost 
everything to make a go of it on Main Street, this kind of story is 
pretty ominous. Let me describe what it is about.
  It is about a small business in Mandan, ND, run by Debbie and Russel 
Kruger. They run a drugstore and soda fountain on the main street of 
Mandan; and to try to make a little extra money, they make homemade 
candy. Debbie Kruger has created three different candy bars, and she 
markets these candy bars as well.
  It is a good small business. They are not making a fortune, but they 
are struggling and doing business on the main street of Mandan, ND.
  If I might, with the permission of the Chair, I ask unanimous consent 
to show the Lewis & Clark Bar on the floor of the Senate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. It is a candy bar that has on its wrapper a picture of 
Lewis and Clark, and buffalo, and the young Indian woman, Sakakawea, 
who guided Lewis and Clark across the West. It is a milk chocolate 
candy bar called the Lewis & Clark Bar, designed by Debbie Kruger in 
1997.
  She did this because we are coming up to the 200th anniversary of the 
Lewis and Clark Expedition. There will be celebrations up and down the 
route that Lewis and Clark took. They stayed the winter in Mandan, ND--
about 40 miles north. They spent the entire winter there. They spent 
more time in North Dakota than any where else on their trip.
  The 200th anniversary--1804, 1805, 1806--will bring enormous 
visitation to the Lewis and Clark route. So Debbie Kruger, created a 
candy bar, the Lewis & Clark Bar.
  She produced 20,000 to 30,000 bars. She sold about 20,000; and 10,000 
are on shelves or in inventory.
  Then she got a letter from a lawyer in Boston, MA. That is ominous 
enough, just getting a letter from a lawyer in Boston, MA.
  The lawyer wrote:
  ``I represent New England Confectionery Company (Necco).'' I know 
Necco. I have been eating Necco products since I was a little kid.
  The letter continues that a matter has come to the attention of this 
lawyer for the New England Confectionery Company. The matter that has 
come to his attention? There is a candy bar in Mandan, ND, named the 
Lewis & Clark Bar. What does that mean?
  He says his company has produced this bar--it is the Clark Bar--and 
this woman has infringed on our rights by using the name, Lewis & Clark 
Bar. She must cease and desist, he says. We seek an arrangement. We 
demand she suspend operations.
  The small business has to go hire a lawyer, who writes back and says: 
This is not an infringement. This is a different candy bar, a different 
wrapper. We aren't infringing on anything.
  The Necco lawyer writes back from Boston--I guess one has to go to a 
special law school to do this--and says: The differences between your 
client's candy bar and my client's candy bar are not the kinds of 
differences that dispel confusion. ``They are both candy bars,'' he 
says. Where do they train lawyers like this? Where on Earth could such 
lawyers come from?
  He says, ``We seek an arrangement.'' We know what that means. They 
seek some money. Then at the end, of course, they demand that the 
registration for the Lewis and Clark bar be withdrawn and ``assigned to 
us,'' and so on.
  Now, the corporation that owns this confectionary company--Necco--is 
actually the United Industrial Syndicate. They do mill works. They make 
automobile parts, truck parts. And yes, they make candy bars, including 
the Clark bar. That candy bar was named after a Mr. Clark who lived in 
the 1880s in Pittsburgh and started the company that made the bar.
  The United Industrial Syndicate bought this company at a bankruptcy 
sale in 1999. It has nothing to do with Lewis & Clark. But here is a 
Boston lawyer, working on behalf of this company, this corporate 
conglomerate, who thinks the name Lewis & Clark apparently belongs to 
them. Sorry, it doesn't.
  Debbie and her husband weren't looking for a fight. They don't have 
the money to spend on a battery of lawyers. They are a small business 
trying to make a living.
  What is happening here is wrong, but it happens all the time. It is a 
form of corporate bullying. It is throwing your weight around, if you 
are big enough to do it.
  My message for Necco is: Pick on somebody your own size. I am one of 
your customers. I can't walk past a candy counter without stopping, if

[[Page S521]]

they have those little wafers. I like the all chocolate ones. I buy 
them all the time. Is that a vice? I suppose. But I do it because they 
are awfully good.
  I am one of their customers, and I say to Necco: Lay off small 
businesses. Don't hire blind lawyers. If you can't tell the difference 
between their Clark bar wrapper and the wrapper for the Lewis and Clark 
bar, then get a new lawyer, and do something worthwhile for a change.
  Thomas Jefferson always said that the long-term success of this 
country would be our ability to sustain broad-based economic ownership. 
Of course, he was talking about a network of family farms and small 
businesses. That is what refreshes democracy, broad-based economic 
ownership. He always insisted that you can't maintain political 
freedoms unless you maintain economic freedom, and economic freedom 
comes from broad-based economic ownership. Therefore, this freedom is 
rooted in the economic health of men and women in this country who run 
America's small businesses on main streets. We need to be concerned 
about that.
  How often do you hear Members come to the floor of the Senate and 
worry about the number of lawsuits in this country? They worry about 
the lawsuits filed by customers against big corporations. What about 
this use of lawyers by a big company trying to put a small company out 
of business? What about that kind of corporate bullying? It is time to 
stop it.

  The men and women who risk their all and work hard to run small 
businesses in this country don't deserve to have to defend themselves 
against a battery of lawyers hired by big corporations. I hope the 
company that produces a product that I purchase--a company I don't know 
very well--will decide that they ought to cease and desist.
  I hope they will decide they have better things to do. I hope they 
will decide they don't own the name ``Lewis & Clark.'' I hope they will 
decide that there is no threat to the economic well-being of their 
company by the existence of a small business on the main street of 
Mandan, North Dakota that makes candy bars and hand-dipped candy. I 
hope they will find lawyers who can understand the difference between 
these two wrappers.
  There must be better things for this company and for its lawyers to 
do. I hope to report to my colleagues one day that this company has 
decided to take a more constructive approach. I also hope that the many 
others around the country who suffer the same sort of difficulty--who 
are being bullied and muscled by some of the larger corporate 
enterprises that worry about the existence of competition--I hope these 
small business people will decide that the solution is not to cave in. 
The solution is to fight. Don't give up.
  I know that this subject is radically different from the issue of 
nuclear waste. But it has a lot to do with what goes on in this 
country, the kinds of business we pursue and the kind of economy we 
will have in the future. If those who are big enough can always gain 
the upper hand then those who are small will never be able to defend 
themselves.
  We must from time to time be the defenders of those in this country 
who aspire to do good work and aspire to run a small business and 
create something of value on the main streets of America.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. FITZGERALD. Mr. President, I ask unanimous consent that I be 
permitted to speak for up to 10 minutes as in morning business and that 
the time be charged to the bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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