–Catlan McCurdy, Attorney

I celebrated Christmas in Wisconsin for the first time this year, and in addition to trying new beers and gallivanting around Milwaukee, I was introduced to a delicacy I had yet to encounter in life: fairy food. Fairy food, for those non-believers, is a chocolate candy, with a sponge-like center made from corn syrup and sugar. It’s sugary enough to make you feel like you can fly and just as addictive. Fairy food, sweet as it is, is also deep in the midst of a bitter trademark dispute.

The fight began when Buddy Squirrel LLC, a small 75-employee operation, was acquired in the spring of 2010 through bankruptcy proceedings by a group of investors focused on turning the business around. Among the acquired assets was the federal trademark registration for the mark “Fairy Food” (Reg. No. 2812547) issued in 2004. Likely recognizing the value of the trademark registration, the new Buddy Squirrel began sending out cease and desist letters to other candy makers in October 2011, just in time for the holiday season.

One of these alleged infringers, Freese’s Candy Shoppe, is fighting back. According to the owners, Wendy and Michael Matel, Freese’s, along with other Milwaukee candy makers, has been calling their chocolate honeycomb candy “fairy food” for decades. Another candy maker, Paul Martinka of Kehr’s Candies, claims the sign in his store advertising fairy food was hand painted in the 1950s. These claimed dates of first use become increasingly important as Buddy Squirrel’s registration claims 1950 as the first use date.

Martinka has since changed the name of his candy to “ferry food,” although the candy is still advertised as “fairy food” on Kehr’s website. Likelihood of confusion? Methinks yes. Although the word “ferry” does bring to mind a delicacy enjoyed by Tom Sawyer rather than Tinkerbell.

The Matels on the other hand, have hired an attorney, Michael Hopkins, in an attempt to get in front of Buddy Squirrel’s first use date or at least argue for concurrent rights. Their efforts include taking affidavits from longtime customers, including one rumored 77 year old woman who has a “distinct memory” of buying fairy food at Freese’s in the early 1940s.

Like recreational drugs, fairy food is known by other names, a point that Buddy Squirrel emphasizes on their own website, “ [Fairy Food] Sponge Candy is also known as molasses puffs, seafoam or angel food.” This begs the question, if your product is known by at least four other names (including sponge candy), what mark are you actually using in connection with the product?

I think “Fairy Food” may very well be near the brink of genericide due to the widespread generic use of the name by competitors and consumers alike. A review by a customer, albeit an 11 year old, published on Buddy Squirrel’s own website demonstrates the use of the mark as a generic term for the honey-comb candy, “I am a sixth grade student who loves your candy. My favorites are your chocolate covered nuts, fairy food, and your chunk chocolate…” Well said, Hallie L.