Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: SATURDAY, January 28, 1995                   TAG: 9501310026
SECTION: BUSINESS                    PAGE: A6   EDITION: METRO 
SOURCE: THE WASHINGTON POST
DATELINE: BINGHAMTON, N. Y.                                 LENGTH: Medium

TYSON MUST PUT AN END TO ITS FLINGS

``This,'' he said, indicating a cardboard box with a red sticker reading ``Wing Flings'' draped across it, ``has got to stop. They are not supposed to be using the name Wing Flings!''

Adams' words set the tone for the hearing Friday, in which Hester Industries Inc., a small chicken producer from Virginia's Shenandoah Valley, sought a second injunction against Tyson Foods Inc. for using a brand name too similar to Hester's Wing Dings label.

Federal Judge Thomas McAvoy agreed, finding the Arkansas food giant in contempt of court for violating a 1992 settlement with Hester in which Tyson promised to change the name of its chicken wings to Wing Flingers. The name change was demanded so there would be no confusion between Tyson's product and Hester's Wing Dings, precooked chicken wings sold since 1964.

In August, Tyson was first found in contempt for violating that settlement. A full hearing on the issue is scheduled for April. Hester will seek more than $10 million in damages and a promise from rival chief executive Donald Tyson that he personally will guarantee that no more Flings come out of company plants.

Until then, Tyson must cease packaging and invoicing any Wing Flings and must inform the grocery stores and restaurants where its chicken products are sold to stop advertising them as Flings, the judge ordered.

During the hearing, in which several members of the public strained to stifle their giggles, the plaintiff's attorneys recounted their covert operation to seek evidence of Wing Flings nationwide. They found boxes of them, they said, in 18 Price Costco stores. They also found invoices and advertisement signs in grocery stores across the country.

John Cleary, Tyson's attorney, explained away the Fling sightings at Price Costco as a mistake that had been corrected.

``It was not done on purpose,'' Cleary said. ``All such Wing Fling labels have been destroyed and it will never happen again.''

In the end, Judge McAvoy didn't bite.

``The fact that Tyson attempts to label this as a temporary error that was corrected does not cure the breach,'' he said.

The fowl battle dates back more than a decade, when Tyson began marketing its Wing Flings to food-service companies and grocery stores. Hester protested in letters and phone calls, and then filed a trademark-infringement case in New Jersey in 1987. Hester lost that case, it says, because the small, family-owned business was unprepared for Tyson's corporate attorneys.

Tyson's lawyers give a different reason.

``They lost that case because no reasonable person would confuse a Wing Fling with a Wing Ding,'' Cleary said.

In 1989, Hester filed an anti-dilution suit in federal court in New York, in which it charged that by using a similar name, Tyson still was infringing on Hester's trademark. It settled that suit in March 1992, with Tyson agreeing to stop using the Wing Flings name by December of that year.