CakesbyMichele Posted 23 Sep 2013 , 1:01pm
post #1 of

Hi,

 

I have someone that wants an over the hill themed cake.  Part of the cake has a pill bottle that has Viagra on it.  I told her that Viagra is under copyright and can't use the actually word.  I tried to get her to abbreviate and she thinks that will 'take away from the cake".  Is there anyway around this?  Is an edible image possible?  Or getting the name from a package and sticking it to fondant and putting it on the cake?  Would misspelling - adding an extra 'a' at the end make it not the same product or is that a no-no?

 

Thanks!

90 replies
Lynne3 Posted 23 Sep 2013 , 1:08pm
post #2 of

I may be wrong but I don't think using a word is a big deal at all.  I'm sure some people would disagree, but I use words like Kleenex and Bandaid all of the time.  

Sometimes I think the copyright do gooders get carried away. 

Narie Posted 23 Sep 2013 , 2:16pm
post #3 of

Names can't be copyrighted,  So there isn't a problem in the woman's request.

 

http://www.copyright.gov/circs/circ34.pdf

Claire138 Posted 23 Sep 2013 , 2:23pm
post #4 of

Jason would know:smile:

MustangMollie Posted 23 Sep 2013 , 2:31pm
post #5 of

AThere is a problem with the request. While names can't be copyrighted they most certainly can be trademarked, and Viagra is trademarked. This link might be helpful http://www.piperpat.com/IPInformation/Introduction/WhatisaTrademark/tabid/90/Default.aspx

If you are making a Viagra cake you're hoping tat Pfizer doesn't choose to go after you, just the same as if you make a Mickey Mouse cake you would hope ta Disney doesn't go after you.

There s one way around it that I can think of. If you buy something tat as the word Viagra on it then fair use applies. This doesn't mean that you can replicate the trademarked name, it means that you can use the item that you purchased however you want. Similarly, I purchased a Muckey Mouse figurine. It didn't allow me to make a cake with copyrighted material on it, but I used the figurine as a cake topper.

I hope that hels :)

lindseyjhills Posted 23 Sep 2013 , 2:38pm
post #6 of

AInstead of writing 'Viagra' on the label, could you write 'Little Blue Pills' ? Colloquially everyone knows what that means - I actually would find that funnier personally.

Crazy-Gray Posted 23 Sep 2013 , 2:45pm
post #7 of

A

Quote:
Originally Posted by lindseyjhills View Post

Instead of writing 'Viagra' on the label, could you write 'Little Blue Pills' ? Colloquially everyone knows what that means - I actually would find that funnier personally.

 

Absolutely agree I think that would be much better!

CakesbyMichele Posted 23 Sep 2013 , 3:06pm
post #8 of

I don't think she will go for that.  I tried to do VGR and she didn't think anyone would know what that meant.  But I will ask her.  Can I add extra letters to change the name but not change the name to avoid the trademark?  Like write 'Viaggaraa' or something to that effect?  Or is that still considered the name?

Crazy-Gray Posted 23 Sep 2013 , 3:18pm
post #9 of

ADon't negotiate- she has two choices- no pot of pills or a pot with 'little blue pills" written on it, its up to you if you risk toying with copyright but since you've told her there is an issue with the trademark I would see it as perfectly fine to give her just those two options.

howsweet Posted 23 Sep 2013 , 3:24pm

Considering that Pfizer has no regard for human life in general and, for example,  is an entity that used an experimental antibiotic on Nigerian children with meningitis without the consent of their parents who thought their children were getting the established protocol... which resulted in the deaths of more than 50 of them,  I have no doubt that they'd not blink at squashing a person who makes cakes if they wanted to do so.

 

I don't know how you'd fight them if they wanted to go after you -  in Nigeria, they managed to push down restitution for the wrongful death of a child to just $175,000 per child. Of course things are a little different here and it seems like they'd be rather silly to do something like this since the last thing they need is bad press about bullying the little guy.

 

I'd probably be inclined to tell the customer that nothing about Pfizer is funny to me and to find someone else to do the cake.

jason_kraft Posted 23 Sep 2013 , 3:25pm

AThere shouldn't be a problem using the name "Viagra" on a cake in a generic font as long as you don't use the Viagra logo, the Pfizer logo, or the pill design (round blue pills should be fine).

See point number 2 in the link below: http://www.inta.org/TrademarkBasics/FactSheets/Pages/TrademarkUseFactSheet.aspx

It is usually permissible to use another company’s trademark when referring to that company’s product in text, where it is being used to truthfully refer to that a product or service affiliated with that trademark. It may not be used in a way that might mislead others as to that company’s affiliation, sponsorship or endorsement of your company, products or services, such as using a logo instead of simply the text form of a trademark, or using the trademark more prominently or frequently than necessary.

madcobbler Posted 23 Sep 2013 , 6:08pm

How about putting a funny name on the pill bottle such as Perky Pecker Pills and have some little  candy blue pills next to the pill bottle.

LeslieBruckman Posted 23 Sep 2013 , 6:23pm

I honestly wouldn't risk it. I have heard some scary stories of companies going after cake decorators. Even Walmart doesn't mess with it anymore. I went to get an edible image of Justin Beiber for a cake and they don't do trademarked ones anymore. You can only do photos and images that you photographed and nothing that contains something copywrited or trademarked.
It would be like someone using an image of your cake on their website, saying "Well, this cake isn't mine, it belongs to so and so, but I made one just like it"... it starts to cross some lines you don't know that you actually want to cross.
I would straight up tell her it is ILLEGAL and you will not be able to do it. Offer her some of the ideas presented here... or nothing. Her choice.

jason_kraft Posted 23 Sep 2013 , 6:42pm

A

Original message sent by LeslieBruckman

I went to get an edible image of Justin Beiber for a cake and they don't do trademarked ones anymore. You can only do photos and images that you photographed and nothing that contains something copywrited or trademarked.

You are correct that there are copyright issues with photos and images, but OP is talking about referring to a trademarked product by name in plain text with no logos or styling involved. In the example above, the equivalent would be writing the text "Justin Beiber" on a cake with the outline of a generic person, this would not infringe on any copyright or trademark.

kikiandkyle Posted 23 Sep 2013 , 7:44pm

AI would love to see that cake though Jason!

MustangMollie Posted 23 Sep 2013 , 9:30pm

AJason, I thought "in text" refers to writing which incorporates the trademarked name (like in an article, review, etc. Not just literally spelling or the letters).

Another option ... What about writing "a little help" on the pill jar spilling or little blue pills? Personally, I wouldn't risk using "viagra."

jason_kraft Posted 23 Sep 2013 , 9:58pm

A

Original message sent by MustangMollie

Jason, I thought "in text" refers to writing which incorporates the trademarked name (like in an article, review, etc. Not just literally spelling or the letters).

There's no difference between spelling out the letters of a trademarked item to refer to it and including a reference to said product in an article or review. No one can legally own or prevent the generic use of a product name, company, etc. as a reference to the original product (as opposed to branding a competing product with the same or similar name to create confusion, which would be a trademark violation).

jason_kraft Posted 23 Sep 2013 , 10:06pm

AFor more info check out the following (specifically #7-9): http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm#7

CakesbyMichele Posted 23 Sep 2013 , 11:38pm

So, Jason, you're basically saying that written in a plain, lower case writing, 'viagra' could be written on the cake which will look like a pill bottle without violating the trademark.

howsweet Posted 23 Sep 2013 , 11:49pm

This is crazy discussion. (yes especially my offbeat post up there). Maybe just use the generic name, sildenafil citrate  :lol::lol::lol: 

jason_kraft Posted 24 Sep 2013 , 12:31am

A

Original message sent by CakesbyMichele

So, Jason, you're basically saying that written in a plain, lower case writing, 'viagra' could be written on the cake which will look like a pill bottle without violating the trademark.

Correct. It doesn't have to be lowercase either, as long as you don't use the Viagra logo (which is copyrighted).

MustangMollie Posted 24 Sep 2013 , 1:44am

AJason, I'm not arguing with you here, but it just doesn't sound right to me. If course nobody can be prevented from discussing our reviewing and using a trademarked name. However we are talking about someone making money by incorporating a trademarked name, but simply some writing. There was a fellow a couple of years ago named Mike Rowe and he was a software developer. He calked his company Mike Row Soft and Microsoft sued him for trademark infringement and won. I have a masters Degree in Creative entrepreneurship, but I only did one semester in copyright/trademark/IP so I'm certainly not an expert. Perhaps the OP should contact an attorney who specializes in this type of law.

jason_kraft Posted 24 Sep 2013 , 2:19am

AThe issue with the Mike Rowe case is that both his company and Microsoft were competing in the same industry, and there was an obvious case of potential confusion in the marketplace. The only way this would apply to OP is if she marketed her cakes as alternative treatments for erectile dysfunction.

As mentioned in the Harvard Law link I posted earlier in the thread, if there is no potential for marketplace confusion and no trademark dilution there is very little realistic chance of trademark infringement. Copyright infringement is more broad, since copyright protects an original creative work instead of just the use of a word or phrase in a specific market segment.

costumeczar Posted 24 Sep 2013 , 2:55am

Oh for pete's sake, just tell her that you can't write it if you don't feel comfortable, then sell her an edible marker to go with the cake and let her write it on there when she takes the cake home. This thread is getting pretty silly. Or write "weiner pills" on it.

MustangMollie Posted 24 Sep 2013 , 3:32am

AHahahaha! Love costumeczar's suggestion! That's probably the best solution!

LeslieBruckman Posted 24 Sep 2013 , 3:56am

Thanks Jason! Good to know.

iseesmith Posted 4 Oct 2013 , 5:06am

She's not the one (your client) that would have to deal with some corporate attorney and get in to a losing battle with a pharmaceutical corp.  If you are not comfortable with it then don't do it......it's all good until it isn't.  I agree with the statement about the bad press they would get going after the little guy but I would hate to be held up as a cautionary example of what happens to decorators that infringe on copyrights and trademarks.  I think some of the other suggestions are better than putting viagra on the bottle.  If she has so little regard for you and you trying to do what is right and legal, then good riddance to her.  

Godot Posted 4 Oct 2013 , 5:29am

A

Original message sent by madcobbler

How about putting a funny name on the pill bottle such as Perky Pecker Pills and have some little  candy blue pills next to the pill bottle.

Perky pecker pills. *SNORK*

vgcea Posted 4 Oct 2013 , 5:47am

A

Original message sent by madcobbler

How about putting a funny name on the pill bottle such as[SIZE=4] Perky Pecker Pills[/SIZE] and have some little  candy blue pills next to the pill bottle.

*Coffee spray all over computer*

onmymind Posted 4 Oct 2013 , 6:03am

Everyone is crazy on here about this copyright crap... why would viagra company be looking for people that do cakes with their name on it??? really... They don't have anything else to be concern with, like running a hugh company.  NO... that are after all the cake decorators that put a name of a pill on their cakes.  Good lord, what has this world come too.  I really can't believe this question is being asked!

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