Is Using Brand Named Products In My "sold" Items Legal?

Decorating By Olenmetra Updated 11 Mar 2014 , 3:42pm by hbquikcomjamesl

Olenmetra Posted 5 Mar 2014 , 8:36pm
post #1 of 18

ACan I combine name brand products to make a product of my own?

For example, can I combine Skippy peanut butter and Hershey's Chocolate to make my own finished product to sell (without any recognition of skippy/Hershey's). I will just indicate "peanut butter"and "chocolate" as some of the ingredients.

17 replies
DeniseNH Posted 5 Mar 2014 , 9:00pm
post #2 of 18

WHOA..........................great legal question.  I'm sure both are branded names and their image copyrighted to the hilt.   Now, if you came up with your own recipe for peanut butter and added something new to your melted chocolate - making it your own - then the answer might be ........yes.  Otherwise, no.  Their name IS their brand and no one has a right to it but them.

AZCouture Posted 5 Mar 2014 , 9:24pm
post #3 of 18

I don't think you can call your cakes, for example "Hershey's Dark Magic", but you can call it "Dark Magic" made with Hershey's cocoa (or whatever). Make sense?

MimiFix Posted 6 Mar 2014 , 3:51am
post #4 of 18
Quote:
Originally Posted by Olenmetra 

Can I combine name brand products to make a product of my own?

For example, can I combine Skippy peanut butter and Hershey's Chocolate to make my own finished product to sell (without any recognition of skippy/Hershey's). I will just indicate "peanut butter"and "chocolate" as some of the ingredients.

 

You can purchase any ingredient to use in your products. Of course! And since you will not be using their brand names, there is no problem.

DeniseNH Posted 6 Mar 2014 , 4:36am
post #5 of 18

Ok, so that doesn't seem fair.  If you purchase plastic figurines for a cake decoration, you need to have the customer put them on the cake in the privacy of their home because if you placed them as part of the cake you could be sued for making money off of a licensed character.  So how is it alright to use Skippy Peanutbutter and Merkins Chocolate but call it Susans Peanutbutter Surprise, then sell it and make money off of a company's branded products.  Do you see where I'm headed with this or am I missing the point totally?

Godot Posted 6 Mar 2014 , 6:22am
post #6 of 18

AThe words peanut butter and chocolate are both public domain.

AnnieCahill Posted 6 Mar 2014 , 2:25pm
post #7 of 18

Purchased plastic figurines are totally fine to put on cakes, because they were purchased.  People modeling them out of gumpaste and charging for them is a problem.

 

I am trying to understand the question...Hershey's manufactures cocoa powder for the sole purpose of people using it in their baked goods, just like Pillsbury makes flour and Land O Lakes makes butter.  The assumption is of course you're going to bake with it.   

 

Like AZ said, you can't use the name of the company in the title, but you can say it's made with Hershey's cocoa powder, or made with Nielsen-Massey vanilla, or made with Valrhona chocolate.  Bakers do this all the time to show the consumer that their products are made with the finest ingredients.  Sometimes they name brands, sometimes they don't.

cupadeecakes Posted 6 Mar 2014 , 2:41pm
post #8 of 18

Unless you're milling your own flour, collecting your own eggs, and getting your milk straight from the cow - aren't all of your ingredients a "brand name" ingredient?

sadiep Posted 6 Mar 2014 , 2:51pm
post #9 of 18

Quote:

 can I combine Skippy peanut butter and Hershey's Chocolate to make my own finished product to sell (without any recognition of skippy/Hershey's). I will just indicate "peanut butter"and "chocolate" as some of the ingredients.

OP - you've indicated you will NOT use the words Skippy or Hershey at all, right? Don't we all, as cake makers, do this every day? i.e., sell products that include brand name ingredients?

 

WAIT - are you guys all picking, roasting, and crushing cocoa beans and grinding peanuts every day and I just missed that part?? (and milking cows and churning butter and milling wheat...)

Relznik Posted 6 Mar 2014 , 2:56pm
post #10 of 18

I'm not sure if I've understood your question correctly?

 

Do you WANT to include the brand names of the ingredients?

 

I make a cake that is flavoured with the alcoholic liqueur Baileys.  So I call it a Baileys sponge cake.  Because that's what it is.  If I were to use a store's own-brand liqueur then I couldn't call it Baileys cake - I would call it Irish Cream Liqueur cake (because that's what it would be).

 

So if you're using Skippy and Hershey's in the cake, I see no reason why you can't call it as such.  You are simply indicating to people what's in it.  If you were using similar ingredients, but not the actual brand, then you couldn't call it Skippy-Hershey cake....

hbquikcomjamesl Posted 6 Mar 2014 , 5:11pm
post #11 of 18

To "DeniseNH": There's a fundamental difference between the three forms of intellectual property. That's why there are three distinct kinds of intellectual property.

 

A patent protects an idea. It allows the originator of the idea the exclusive (but assignable) right to profit from the idea. That's why it's so difficult to get (you have to prove that the idea is novel, non-trivial, non-obvious, and useful), and why it lasts for such a limited time.

 

A copyright protects an expression of an idea. It allows an author or artist (or his or her employer, in the case of a work-for-hire) the exclusive right to profit from that expression of an idea for the rest of his or her life, but it doesn't protect the idea itself. I can, for example, write a novel about the adventures of a child-prodigy organist, and publish it, and the copyright would protect my right to profit from that particular novel, and from, for example, a motion picture based on it, but it doesn't stop anybody else from writing a substantially different story on the basic idea of a child-prodigy musician as protagonist, unless I can prove that the other story was cribbed substantially from mine. Likewise, The Walt Disney Company's copyrights cover Walt's vision of, say Pinocchio, but not Carlo Collodi's original novel. They cover the 1998 animated version of Mulan, but not the ancient Chinese legend of Hua Mulan, nor the numerous plays, operas, poems, and so forth based on that legend.

 

A trademark protects a name, glyph, package shape, image, or other identifying mark used to identify a product and its origin. It allows the owner to profit from brand recognition, and to penalize those who would either (1) unfairly profit from the trademark owner's reputation, (2) do harm to the trademark owner's reputation, or (3) both.

 

If you were to sculpt Mickey Mouse yourself, as a cake decoration, or put his picture (whether piped, painted, or edibly printed from a scan of, say, a Steamboat Willie poster), you would be infringing a copyright on the character. If you were to buy a licensed Mickey Mouse cake decoration, edible or otherwise, and put it on a cake, you would be in the clear. Putting Mickey Mouse figures not intended as cake decorations on a cake would put you into a gray area, both in terms of intellectual property law and in terms of food safety.

 

But with name-brand ingredients, the only sort of intellectual property law you could possibly be infringing would be trademark law, and only if you specifically identified the brand(s) involved. And even then, it would be entirely up to the trademark owner to decide whether you were infringing their trademark or giving them free advertising. (Case in point, for decades, the railroads were all-too-happy to let model train manufacturers use their trademarked logos and paint schemes, treating it as free advertising. Then somebody in the legal department at [if I remember right] Union Pacific decided they wanted to squeeze the manufacturers (some of whom were part-time operations literally run out of garages as "lucrative hobbies" rather than as serious businesses) for exorbitant royalties, even though the notion of a model boxcar little more than 5 1/2 inches long being confused with a real one over forty feet long was ludicrous, and even though the historical evidence showed that the railroads benefited at least as much as the model train manufacturers did from the long-standing policy of tolerance.)

 

If you're not (as the OP said) identifying the specific brand names, then there would be no infringement (and in any event, not identifying brand names would give you the freedom to change them at will).

DeniseNH Posted 6 Mar 2014 , 5:50pm
post #12 of 18

Thank you SO much.  I'm printing this out.  Great information.

hbquikcomjamesl Posted 6 Mar 2014 , 7:20pm
post #13 of 18

Just keep in mind that while I have an author's knowledge of intellectual property law, I am not an attorney, and neither do I play one on television.

costumeczar Posted 6 Mar 2014 , 11:11pm
post #14 of 18

You can use whatever you want to in your products, but you can't use the brand name to advertise them or name them.

Olenmetra Posted 10 Mar 2014 , 11:39pm
post #15 of 18

some of these are GREAT responses and JUST what I needed.  thx for responding

Pyro Posted 11 Mar 2014 , 9:08am
post #16 of 18

Quote:

Originally Posted by Relznik 

 

I make a cake that is flavoured with the alcoholic liqueur Baileys.  So I call it a Baileys sponge cake.  Because that's what it is.  If I were to use a store's own-brand liqueur then I couldn't call it Baileys cake - I would call it Irish Cream Liqueur cake (because that's what it would be).

 

Not true, for the reasons hbquikcomjames stated above. You can't use the trademark in the product name ( some people COULD think it was made by the said company ). Yes some people are like that. Using the word Baileys would be a nono, you could thought I believe ( might be wrong ) use it in the ingredient list.

 

I can tell you for fact a place I worked before had to change the word " Ferrero " from the cake name even thought it had Ferrero's on top and everywhere inside. They got a call and had to rename it to " hazelnut ".

Snowflakebunny23 Posted 11 Mar 2014 , 12:21pm
post #17 of 18

Quote:

Originally Posted by Pyro 
 

 

Not true, for the reasons hbquikcomjames stated above. You can't use the trademark in the product name ( some people COULD think it was made by the said company ). Yes some people are like that. Using the word Baileys would be a nono, you could thought I believe ( might be wrong ) use it in the ingredient list.

 

I can tell you for fact a place I worked before had to change the word " Ferrero " from the cake name even thought it had Ferrero's on top and everywhere inside. They got a call and had to rename it to " hazelnut ".


I have heard of Ferrero being very strict on such things...it's mad but at the same time, I can understand when they will have spent millions in product building that they would want to protect it.  I would have thought you would have to be allowed to list it as an ingredient though... that would be a fact and the only way or reliably identifying that product ingredient to a customer?

 

@ Relznik - maybe you could go replace baileys with  'cream liquor which is very fattening, comes in a dark bottle, and does really really long TV adverts at Christmas' :lol:  lol x

hbquikcomjamesl Posted 11 Mar 2014 , 3:42pm
post #18 of 18

Perfectly understandable: they are an internationally-known premium brand. They don't need free advertising from sources outside their control. Just by "dropping their name" in the ingredient list (and certainly by doing so in the name of your product), you're tapping into their fame and reputation in order to sell a product they have no control over (and that they cannot, therefore, prevent from harming their reputation).

 

It's the use of their name, not their product, that's the equivalent of using an unlicensed image of, say, Mickey Mouse.

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