Intellectual property law meets Fluff

For generations, kids across New England have grown up with the sticky-sweet, snow-white confection known as Marshmallow Fluff. These days, however, there's a hint of sour at the Lynn headquarters of the key ingredient behind the classic peanut butter-and-Fluff concoction known as the Fluffernutter.

Durkee-Mower Inc., longtime maker of Marshmallow Fluff, has sued Williams-Sonoma Inc., ordering the kitchen-furnishings retailer to stop selling tins of a candy bar called the Fluffernutter, a name 86-year-old Durkee-Mower trademarked in 1961. Williams-Sonoma has until April 14 to respond to the complaint in US District Court in Boston.

''They're trying to trade on the nostalgia for the classic Durkee-Mower product without acknowledging our trademark rights," said Durkee-Mower attorney Peter Sloane, who specializes in intellectual property law at Ostrolenk, Faber, Gerb & Soffen in New York. ''To me, it's a flagrant violation."

Hilleary Kerhli, manager of public relations for San Francisco-based Williams-Sonoma, declined to comment on the suit because it is still pending.

For Don Durkee, the 80-year-old son of company cofounder H. Allen Durkee, it's amusing to think of his product in terms of ''intellectual property." Made by a firm with 21 employees from front office to the back of the warehouse and no ancillary ventures other than modest-selling strawberry and raspberry flavors, Marshmallow Fluff is a simple, old-fashioned commodity with humble ambitions.

''We're a low-profile company," the president said in a recent interview in his wood-paneled office in the company's old plant by the railroad tracks. One wall is dominated by a classroom-style topographical map of the United States; in the hallway hang a huge, ragged American flag and an impressive mounted tarpon caught by his father. Describing recent improvements to the company website, Durkee turns on his computer, joking about how rarely he uses it.

The late Allen Durkee and his partner, Fred L. Mower, fellow Swampscott High graduates and World War I veterans, went into business together in 1920, making hard candy and lollipops. Soon after launching they bought the recipe for a marshmallow cream from a Somerville entrepreneur. They focused their energies on the new product, which was originally called Toot Sweet Marshmallow Fluff.

The formula -- a well-beaten mixture of corn syrup, sugar, dried egg white, and vanillin -- cost the partners $500, Don Durkee says.

''It only had four ingredients. You could almost accidentally invent it."

From the earliest years the co-founders marketed the brand by emphasizing its many uses. By the 1940s the company was luring customers with a popular cookbook -- ''The Yummy Book" -- with recipes for frostings and Whoopie pies. Later innovations included Rice Krispies Treats, candied sweet potatoes, and a Fluff-enhanced cheesecake.

''It was part philosophy and part logistics," recalls Durkee, who joined the company upon his graduation from Dartmouth in 1949. ''Rather than bring out new products every year, we felt Fluff was an ingredient." He compares it not to peanut butter or jelly but to cooking staples such as sugar and flour: ''It has unlimited uses, really."

Today, Durkee distributes to most regions of the United States as well as much of Europe, though its stronghold remains in the Northeast.

''It's a nice fit," said Darryln Leikauskas, vice president of marketing for Brigham's. ''They're a real New England kind of flavor, and that's what Brigham's is all about."

According to Durkee-Mower, the standard white plastic 16-ounce tub of Marshmallow Fluff rivals Skippy's most popular peanut butter container as the best-selling item in the sandwich-spread sections of New England supermarkets.

''We have the position in the market virtually to ourselves," says Durkee, walking a visitor along the clattering production line in Lynn, where buckets of Fluff shimmy down conveyor belts under the eyes of machine operators in white jumpers. ''It's a quality product at a reasonable price."

The peanut butter-and-Fluff sandwich, long a customer favorite, didn't take on its Fluffernutter nickname until an advertising agency suggested it around 1960. The company quickly moved to register the trademark.

Though there has been at least one minor challenge to the Fluffernutter name since, the Williams-Sonoma lawsuit, about which Durkee defers all comments to his lawyer, has prompted friends to needle him about his sudden propensity for suing people. He likes his tidy little operation just fine, without the headaches of big business.

''I don't think any of us particularly want to deal with that aspect of the business," agrees treasurer and executive vice president Jonathan Durkee, 41-year-old son of the president. ''Unfortunately, sometimes you have to.

''My father would rather promote the product than the company. Most people have never even heard of the company, but pretty much everyone knows the name of the product."

FLUFF FACTS

View our Salute to Fluff photo gallery at boston.com/business.