Our trademark Marshmallow Fluff is one
of the oldest and best known brands in America.
Limpert Brothers trademark name, Marshmallow
Fluff, was created by us in 1910, and as a proven fact, sold
in our trade in 1913, to designate our marshmallow product.
Over 9 decades of food service, distributors,
people in hotels, resorts, casinos, restaurants, diners, sundae ice
cream shops, hospitals, nursing homes, ice cream or yogurt manufacturers
and as well, the general public, have known or used our trademark Marshmallow Fluff.
In fact, our trademark, Marshmallow Fluff,
must be known to almost everyone who has ever had a child, raised
a child, was related to a child, befriended a child, or was a child.
Old, well known brands are very valuable, and they are rare. Only
a relative handful of companies and brands that are well known live
to reach their one hundredth birthday.
But Marshmallow Fluff is rarer still,
almost as rare as the mythical and fabled unicorn; indeed almost as
legendary, because Marshmallow Fluff and Limpert Brothers are part of one of the best kept secrets in american business.
Limpert Brothers and another private company, under
a different and separate management, use our trademark name, Marshmallow
Fluff, for their marshmallow as well.
We know of no other case in american business where the same trademark
or brand is used simultaneously by two unrelated, private or public
companies, who use the same brand, on the same product, at the same
It came about in this way:
In 1939, we were advised that another company was using our
brand name. Upon investigation, it was determined that the provenance
of the trademark, Marshmallow Fluff,
was ours since we had the earliest use of this trademark. We were
represented by Dr Stephen P. Ladas, who later wrote 8 or 10 books
on the protection of patents and trademarks, published by the Harvard
University Press, taught at the Haigh, and became an internationally
known authority on the care and protection of copyrights and patents.
In a series of letters and meetings, we were asked by a Mr. Rawlings,
who represented the other company, to sell our trademark to them. John Limpert agreed,
and named the price at which we would sell our whole trademark. Apparently,
the other company could not afford to purchase the whole trademark,
which would have given them clear title to it. Instead, they suggested
that for 1/5 of the price, they purchase a narrow segment of our trademark,
or the right to use our trademark, for a retail grocery consumer,
in a sharply restricted use agreement. We agreed.
In an agreement made between us, in 1939, we allowed them to use our
trademark, for their product, in a very restricted way. We agreed
to let them use our trademark, Marshmallow Fluff,
for retail grocery consumers only, by sharply restricting their sale
of Marshmallow Fluff in up to a 1lb jar
or tub, except in New England, where it could be more.
What is implicit in this restriction alone, is that it further defines
the contractual fact that their use of our trade name, Marshmallow
Fluff, can only be sold to a retail grocery consumer, which
is the sole right they bought from us for 1/5, or 20% of the price
of the whole trademark, Marshmallow Fluff.
We retained all the other rights to 80% of our Marshmallow
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