Trademarks/copyrights/copyrighting Colors Etc

Business By costumeczar Updated 6 Oct 2009 , 1:21pm by CarolAnn

costumeczar Posted 20 Apr 2008 , 8:16pm
post #1 of 30

Any copyright attorneys on the boards here?

The thread on this board about David's Bridal copyrighting colors spurred me to finally go to the government website that addresses copyrights. It says that you can't copyright colors. Below is the difference between trademarks and copyrights from the website, the bold is my emphasis:

[i]Some people confuse patents, copyrights, and trademarks. Although there may be some similarities among these kinds of intellectual property protection, they are different and serve different purposes.

What Is a Patent?
A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions.

The right conferred by the patent grant is, in the language of the statute and of the grant itself, âthe right to exclude others from making, using, offering for sale, or sellingâ the invention in the United States or âimportingâ the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.

What Is a Trademark or Servicemark?
A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and servicemarks.

Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office. The registration procedure for trademarks and general information concerning trademarks is described in a separate pamphlet entitled "Basic Facts about Trademarks".

What Is a Copyright?
Copyright is a form of protection provided to the authors of âoriginal works of authorshipâ including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.

The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine.

What Is Not Protected by Copyright?
Several categories of material are generally not eligible for federal copyright protection. These include among others:

Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)

Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration

Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

Some of the language in here was confusing because cake design wasn't addressed directly (I can't believe the people at the patent office don't think about cakes all day icon_biggrin.gif ) But it said that you can't copyright a color, and the language regarding "sculptural works" said that it was sculpture that was involved in the structure of a building or something permanent.
It said that if you copyright a description of a machine, the description is what is covered by the copyright, but that someone else can build the same machine or write their own description for it. As far as recipes, you can't copyright a list of ingredients, but if it's in a cookbook and is accompanied by a long description and then someone steals it they said that you might be able to make an argument for copyright infringement. (A certain "domestic diva" has made a career out of stealing other people's recipes and getting away with it by changing 1 Tbsp to 3 tsp, for example...) Since the David's thread was what started this, I was curious about how they intend to monitor who recreates "their exclusive designs," since I'm sure that their cakes aren't going to be anything so unusual that they can claim they designed them first, which seems to be the only way that you can even try to think about getting away with preventing someone from copying the design. You can prevent someone from using the actual picture and saying that they took it, but you can't stop them from making a similar cake. If any attorneys read this and would like to elaborate I'd be interested in what the actual ins and outs are!

29 replies
tonedna Posted 20 Apr 2008 , 8:28pm
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Well it sounds to me that that as long as you dont do things exactly the same way you are not breaking any copyright laws...
Edna icon_biggrin.gif

indydebi Posted 20 Apr 2008 , 8:29pm
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good info and good job of putting it in language the normal person can understand. Saving this in my files for future reference .... and will be very interested in seeing posts with add'l info.

moreCakePlz Posted 20 Apr 2008 , 8:50pm
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Great info costumeczar.

Here is more legal stuff on Recipes and Copyright from Recipezaar:

costumeczar Posted 20 Apr 2008 , 10:20pm
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I'm still curious about the copying of cake designs themselves...I think that someone had once posted that a cake designer "of some repute" had said that he'd be happy to have someone copy one of his designs because he'd get to sue them. (I don't want to quote him directly because who knows if he really said it!) I've also read in some industry magazines about how some of the more well-known cake designers say that they don't want people to copy their designs...Then why do they put them in magazines??? I can see how it's annoying, but oh well! I've had people copy my designs before, and I've had plenty of brides come to me with a picture and say that they want that cake. I don't do the cartoon characters because that's a pretty clear issue, but the idea of a design for a cake isn't covered specifically, so it's more nebulous. The government website did say that to sue someone you pretty much have to have registered the copyright, not just say that you hold it, and I doubt that they've registered the design to every cake they've made...Maybe I'll try to register one and see what they tell me!

Edited to add this:

I went back to the government copyright office website and found this list of visual arts items which are considered in the copyright-able category. Notice that cake designs are not on the list, nor are any other kinds of food:
Visual Arts Works
For copyright purposes, visual arts are original pictorial, graphic, and sculptural works, which include two-dimensional and three-dimensional works of fine, graphic, and applied art.

Examples of visual arts works:

Advertisements, commercial prints, labels
Artificial flowers and plants
Artwork applied to clothing or to other useful articles
Bumper stickers, decals, stickers
Cartographic works, such as maps, globes, relief models
Cartoons, comic strips
Dolls, toys
Drawings, paintings, murals
Enamel works
Fabric, floor, and wallcovering designs
Games, puzzles
Greeting cards, postcards, stationery
Holograms, computer and laser artwork
Jewelry designs
Needlework and craft kits
Original prints, such as engravings, etchings, serigraphs, silk screen prints, woodblock prints
Patterns for sewing, knitting, crochet, needlework
Photographs, photomontages
Record jacket artwork or photography
Relief and intaglio prints
Reproductions, such as lithographs, collotypes
Sculpture, such as carvings, ceramics, figurines, maquettes, molds, relief sculptures
Stained glass designs
Stencils, cut-outs
Technical drawings, architectural drawings or plans, blueprints, diagrams, mechanical drawings
Weaving designs, lace designs, tapestries

tenleysmommy Posted 20 Apr 2008 , 10:34pm
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Great info!I have always wondered if/how someone could copyright a cake.Thanks for sharing icon_wink.gif

moreCakePlz Posted 21 Apr 2008 , 12:41pm
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Are cakes not considered a visual art because they are transient? Not permanent? They are created and consumed/disappear within a few days.

If a person designed a non-edible dummy cake would it be copyright-able? Is a dummy cake any different from a âmodelâ (one of the items on the copyright-able list above)?

Just curious. I find this legal stuff kind of thought provokingâ¦.

costumeczar Posted 21 Apr 2008 , 3:50pm
post #8 of 30

I think that it's just a matter of it being food...The laws are all aimed at tangible written or "built" items, not at edible things, so cakes don't really fit anywhere in the guidelines. It's probably a function of designer cakes being a relatively new thing, and how could you enforce it? By the time you want to sue someone the evidence is gone! icon_twisted.gif If they're using pictures of your cakes and saying that they made that exact cake that was photographed, it's the picture that's the issue, not the cake, so the whole thing is kind of borderline when you start talking about suing someone for using your original design. Anyway, how many designs are truly original? There are cakes in magazines that are copies of wallpaper, fabric patterns, etc., and I think that most people would be hard-pressed to prove that they were the first one to ever think of a particular design. They might be the first to gain notoriety from making it, but like I've said before, I've seen a lot of "original" techniques and designs on tv and in magazines that either I or people I know have done before. You just have to be the first one to market it.

I'm still hoping that someone on this board is a copyright attorney and can address the actual handling of a case that would involve a cake design! It just seems like a very grey area, but I don't think that it's something that anyone could really copyright.

littlecake Posted 21 Apr 2008 , 4:04pm
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ok, i'm confused...i jst went to the "wedding cakes across america" site...and it looks like everyone has thier own cakes to display...if you click on the takes you to the cakes this person offers.


their skill level varies wildly...YIKES

so are they gonna be copywriting everyones cakes? doesn't make sense to me.

costumeczar Posted 21 Apr 2008 , 4:36pm
post #10 of 30

I think the wedding cakes across America is mostly an advertising thing. They called me about getting the exclusive David's spot, but when I turned it down I'm sure they just called the next person on the list. They probably have specific designs that they think they can copyright, but I don't see how they can expect to do that. You can probably choose their "exclusive" design, or use the vendor's own designs, they don't limit you to the David's design.

How they described it to me was that you pay to have your advertising in the store, and you're the only vendor that can advertise there, hence the "exclusive." I don't think it's an ability-related thing, just whether you're willing to pay for the advertising space! I don't really want to be in with the David's in my area, it has a reputation for being difficult to work with and supposedly offers pretty bad customer service, if they even pay any attention to you at all.

indydebi Posted 21 Apr 2008 , 4:40pm
post #11 of 30
Originally Posted by costumeczar

I think the wedding cakes across America is mostly an advertising thing. They called me about getting the exclusive David's spot, but when I turned it down I'm sure they just called the next person on the list.

I got a voicemail from Heather of Across America ... I deleted it without even writing down the number.

costumeczar Posted 21 Apr 2008 , 4:47pm
post #12 of 30


TheButterWench Posted 21 Apr 2008 , 4:47pm
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what they can do is copywrite the NAME Of a particular color or even a formula to get that particular color.

They can call it...DAVID'S BRIDAL PINK and no one else can use that name, they can also be the only one to be able to sell it.

Like when you buy a Fast food franchise.

even the formula to get that particular shade if it's made by their chemical engineers and researchers.

2 drops red, 1 drop white, 1 drop pink ( that's a

costumeczar Posted 22 Apr 2008 , 2:24pm
post #14 of 30

even the formula to get that particular shade if it's made by their chemical engineers and researchers.

2 drops red, 1 drop white, 1 drop pink ( that's a

What if I wanted to be a troublemaker icon_twisted.gif and copyrighted my own description of that formula..."2 drops red fod coloring, 1 drop white food coloring, 1 drop pink food coloring." Does that count as an original copyright? It said that a copyright doesn't prevent someone from writing their own description of the same item, so I think it would be okay. You also can't copyright recipes, so since it's food I could argue that!

I can't see the David's color police doing much to enforce this one, ha ha!

teenycakes Posted 22 Apr 2008 , 8:06pm
post #15 of 30

I noticed that Deco Pac has "The Cupcake Bouquet" trademarked. Does that mean that if we advertise a cupcake bouquet that we have to change the name, so it doesn't infringe upon their trademark? This is confusing. I should have gone on to get my JD when I was in grad school. Any ideas?

costumeczar Posted 22 Apr 2008 , 8:10pm
post #16 of 30

A Trademark is for a specific phrase, so as long as you're not using "The Cupcake Bouquet" specifically you're fine I'd guess. They're not selling cupcakes, are they? Is it some kind of a supply to make them? That would make me think that if you try to sell a similar item and use the specific name then you'd be violating the trademark, but if you're selling something different and using different phrasing it's a different issue.

indydebi Posted 22 Apr 2008 , 11:03pm
post #17 of 30

Does it have the "tm" mark or the "r" mark? The "r" (in a circle) indicates it's a registered trademark (federal level? ... can't remember). Just the "tm" means it's not yet registered .... i THINK it means it's been applied for.

bitofsnshn Posted 23 Apr 2008 , 2:33am
post #18 of 30

I took a class a few months back with a pretty famous cake decorator. Who also received legal threats for recreating certain designs via cake.

From what i was told Cake is not considered an art and therefor not covered by copyright protection. The problem is that the cost to fight these company's threatening them is to great and therefor many people just do not want the hassle and therefore do not replicate items.

Have there been any legal cases in favor of a company for a cake decorator replicating ithere items in cake?

teenycakes Posted 23 Apr 2008 , 1:47pm
post #19 of 30


Here's the link to the deco pac web site.

The mark is TM, and I think it applies to the materials they use to make the bouquet. Does this mean if we want to sell cupcake bouquets we have to call them something different? For example could I advertise "Cupcake Bouquets" as a product I'm marketing?

costumeczar Posted 23 Apr 2008 , 1:48pm
post #20 of 30

The "TM" on its own just shows that it's a trademark that you use in your business and you're claiming it as your own. The "R" in a circle means that the trademark has been registered with the government, which gives you a leg to stand on if you try to sue someone. What I read said that trademarks aren't necessarily something that you have to register, but it helps if you want to take legal action, because then you can prove that you registered it at a certain time.

As far as suing someone for using a cake design, I think that bitofsnshn is right, and it's just a matter of the idea of legal fees. If someone actually did threaten to sue you, you could probably say to go ahead and they wouldn't be able to do it, but do you want to take a chance that you might have to pay the legal fees? icon_eek.gif This probably comes about more when people copy someone's design and then publishes it as their own work, but for those of us who aren't nationally-known decorators who have pictures in magazines of everything that we've done, it probably will never affect us at all! Unless Disney comes a-knockin', because they don't fool around!!!

I will say that people have sent in to magazines that are obviously a complete copy of a cake that someone else has made, and I don't like that...I've seen a few in ACD that are straight copies of something that was in a wedding magazine, and it just seems wrong that someone would send that in and say that it was their cake. I understand that they made it, but they didn't come up with the idea. On the other hand, I've seen people in my area use photographs from books in their advertising, and that's straight-up copyright infringement, not to mention deceptive advertising! I have clients who want copies of cakes in magazines, and if I do them I don't even feel right about putting a picture on my website since it wasn't my original design, even though there's nothing illegal about it, really. Just doesn't feel honest!

ACDMBN Posted 25 Apr 2008 , 4:27pm
post #21 of 30

If anyone has the Aug/Sep 2006 issue of ACD, there is a feature article in the back (in the Cake Decorating Business section) that discusses copyright and how it affects cakes. It did a wonderful job, in my humble opinion.

cutthecake Posted 5 Oct 2009 , 11:42am
post #22 of 30

If someone makes a hamburger problem.
If someone makes a hamburger cake and calls it--in print--a Big Mac or Whopper...problem.

Two women--somewhere in the USA--bought the rights (or whatever the proper legal term is) to the "Happy Birthday" song. So, everytime that song is sung in a movie or on TV, they receive royalties (or whatever the proper term is). And I have noticed that I don't hear it sung all that often these days.

So, what about reproduction of designer purses and logos on cakes? Violation or not?

costumeczar Posted 5 Oct 2009 , 12:39pm
post #23 of 30
Originally Posted by cutthecake

If someone makes a hamburger problem.
If someone makes a hamburger cake and calls it--in print--a Big Mac or Whopper...problem.

Two women--somewhere in the USA--bought the rights (or whatever the proper legal term is) to the "Happy Birthday" song. So, everytime that song is sung in a movie or on TV, they receive royalties (or whatever the proper term is). And I have noticed that I don't hear it sung all that often these days.

So, what about reproduction of designer purses and logos on cakes? Violation or not?

The Happy Birthday thing is semi-true, but not entirely. Look it up on It's protected by copyright for commercial performances (two sisters don't own the copyright, though) but it said that copyright violations are rarely prosecuted.

Disgner purse logos, yes, that's a violation. There was a story posted on here somewhere a while ago about one of the purse companies going after someone in Ireland, I think?

cutthecake Posted 5 Oct 2009 , 1:11pm
post #24 of 30

Plagiarism anyone? Almost every article I read about the Happy Birthday song was copied, without credit, from somewhere else! Word for word, in many cases.

indydebi Posted 5 Oct 2009 , 1:15pm
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i've heard "happy birthday' was a public domain song that no one owned? icon_confused.gif

cutthecake Posted 5 Oct 2009 , 1:17pm
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A subsidiary of Time Warner owns it, and it generates around $2 million annually in royalties.

Kapelipl Posted 5 Oct 2009 , 3:53pm
post #27 of 30

I know this is off topic but . . . went to the Wedding Cakes Across America site and am shocked what real flowers that people put on cakes! Lily's and hydrangeas are poisonous! Ahhhhhh!

Just wanted to vent there. All better now.

Mike1394 Posted 5 Oct 2009 , 4:07pm
post #28 of 30

I think it is because cake is food. The Gov article said something about being a tangible item. Everything later posted was a "hard" item. Here's a curveball for ya. What about a dummy cake? That should be able to be copywritten. It is a form of art that is permanent.

Hmmmm I've eaten some bisquits that were certainly permanent items LOLOL icon_biggrin.gif


cutthecake Posted 6 Oct 2009 , 12:37pm
post #29 of 30

There was an article in today's newspaper that said Coach is suing Target for manufacturing and selling handbags that too closely resemble Coach's designs.

CarolAnn Posted 6 Oct 2009 , 1:21pm
post #30 of 30

My DH invented a certain device after his boss had a flood at his house while he was on vacation. He applied for a patent but it was turned down because there was a similar patented device out there. DH didn't have to change the device itself, just the wording in the description of the device and how it operates so that it the description was not the same as the other guys device. Is that clear as mud?? He got his patent on the second application. He was told patent apps are usually almost always turned down twice before they are granted. Revenue?????

If I mix a color it's mine mine mine. If it matches their color I'll name it after my granddaughter Madison and that makes it mine. Never mind that I may never be able to match the color again.

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