sdfgarcia Posted 12 Oct 2005 , 2:00pm
post #1 of

My "real job" is dealing with promotional products, so I understand the workings of a licensed product (an NFL logo, Dora, etc). How are you all handling it when you get an order for a team logo on a cake, a licensed TV character, or a trademarked item such as a Twinkie?

In promotional, we aren't supposed to resell an item with a licensed logo without permission from the logo holder. Are the rules different for food service?

18 replies
JoAnnB Posted 12 Oct 2005 , 9:49pm
post #2 of

Licensed characters for cakes are no different than any other licensed item. We are not permitted to charge for licensed characters, they are intended for home/personal use only.

However, some decorators do take the risk and sell licensed items.

KayDay Posted 12 Oct 2005 , 10:02pm
post #3 of

I have a different approach...I refuse to "SELL" character cakes...but I will "GIVE" a customer one ...when they pay my packaging fee of 45.00

TraciJ Posted 13 Oct 2005 , 2:08am
post #4 of

I don't know how legit this is, but I saw on someone's professional website that instead of creating the character, they have a scene or background and have actual figures of the licensed character, that way they are not recreating them and there is the control over the actual character. However, I do not know how legal that is.

Traci

CakemanOH Posted 13 Oct 2005 , 12:21pm
post #5 of

So what are anyones thoughts on giving the cake away but charging for the box and packaging like mentioned a few e-mails up.

rainbowz Posted 13 Oct 2005 , 2:04pm
post #6 of
Quote:
Originally Posted by ceculsk

So what are anyones thoughts on giving the cake away but charging for the box and packaging like mentioned a few e-mails up.


I am somewhat doubtful that would stand up in a court of law in the somewhat unlikely event that, say, Disney or Warner Brother's legal wolves descended on you. These guys get paid massive bucks to do whatever is necessary to protect the owners of that design from infringements. Let's face it, that character belongs to them, using it to make a profit is stealing. That's how they see it and that's how a court will see it.

Cute tricks like "selling the box" are unlikely to be effective - you know the cake in the box you sold has Bugs Bunny or whatever on it, and that you didn't have permission to use it, the judge will know it too - they're not stupid.

It's probably a lot easier to get away with the NHL and other sports team stuff: if you happen to use a set of colors on your cake along with a generic item like a hockey stick but without the actual team logo, the kids will still assume it's the team colors, it's about hockey and will make the connection.

You're probably less likely to get in trouble if you buy a particular character toy and stick that on the cake - so make an "underwater scene" and plop a Spongebob toy on top. In that case, you've paid someone who, we'll presume, has bought the license to produce the character, you're now passing that purchased toy to the customer. All you did was create the underwater scene. No one has a copyright on that, Spongebob's owners got paid for the toy somewhere along the line, everyone's happy.

Things you don't want to be doing: advertise in any way that you make Spongebob cakes, include pictures of an NHL logo cake in your portfolio (skates, hockey sticks, non-specific designs, go nuts) or any other promotions that you're willing to swipe the creative work of others for a profit.

Now the probability that Disney will come swooping down on Katie's Krazy Kakes and slap a charge of infringement on your little biz is mighty low. But it's not ZERO.

Back in the mid 90's, the internet was chock full of Disney character webpages by people who thought it was harmless to copy Mickey and pals for personal use. Disney saw it as unauthorized use of their goods and legally, they had to do something about it. If they allowed Mickey to show up unlicensed on people's webpages, they were in effect placing their characters into "public domain" and would lose control of it, legally. Since they're not about to let a multi-billion dollar design go for free, they cracked down big time and really got tough on web site owners as well as hosting services with legal threats. As is their right, I'll point out. Today, you are not likely to run into many sites that use Disney characters.

So if the legal department of a big corp like Warners, Disney or the NHL get wind of you using their design, they may just sendd you a strongly worded "cease and desist" letter. OR they may just take you to court and charge you with theft.

Or you could just not swipe their proprietary designs for personal profit and avoid any possible problems. "We're sorry but we simply don't do trademarked character cakes, it's not legal for us to do so" should be an easy and understandable response to anyone who asks for one. Then suggest you'd be happy to create an underwater scene if Mom is willing to go find and buy small Spongebob and Friends toys to stick on it, something about the size of this (hold up sample toy). (Yes, send them out to buy it, you don't have time to go shopping for that yourself, do you?)

KayDay Posted 13 Oct 2005 , 4:31pm
post #7 of

Hmm....Guess I was wrong...I was pretty sure you could GIVE away a cake without breaking any laws. I might need to call a few of the national chain pet stores and let them know they need to stop this practice A.S.A.P!

Since Alabama made it illegal to sell box turtles as pets, they will now GIVE you one if you buy the habitat, which oddly enough has increased in price roughly the amount that a box turtle used to cost! I think that is along the same lines. But I am sure our legal specialist knows best!

Lisa Posted 13 Oct 2005 , 5:32pm
post #8 of

Here's some helpful info...

http://webmall1.com/sweetdreams/copyrules.htm

rainbowz Posted 13 Oct 2005 , 5:37pm
post #9 of
Quote:
Originally Posted by KayDay

Hmm....Guess I was wrong...I was pretty sure you could GIVE away a cake without breaking any laws. I might need to call a few of the national chain pet stores and let them know they need to stop this practice A.S.A.P!

Since Alabama made it illegal to sell box turtles as pets, they will now GIVE you one if you buy the habitat, which oddly enough has increased in price roughly the amount that a box turtle used to cost! I think that is along the same lines. But I am sure our legal specialist knows best!




Your comparison doesn't apply when you're dealing with a multi-million dollar industry interested in keeping it's legal control over it's profitable characters. They get VERY AGGRESSIVE about it and they have the law on their side. Note that Disney HAS gone after people simply for displaying their characters without permission, no "fake" selling of boxes involved.

Honest judge, I wasn't selling this TV I found in the store, I was selling the BOX. Riiight, he'd buy that, for sure. icon_lol.gif

Just be aware that they pay damn good money to their lawyers to specifically look for this copyright infringement stuff and you may well be targeted.

KayDay Posted 13 Oct 2005 , 5:51pm

Stealing their design? Last time I checked I BOUGHT all of my disney pans that I am CERTAIN they got a cut from the sales of. After I pay for the ingredients and do the work...the cake is MINE to do with as I please. To be honest out of my few years of cake sales I have NEVER been asked to do a character pan! I am sure major corps. like disney etc. would prefer everyone keeps putting EVERY dollar possible in their pocket. And buy a pan they are going to use once , I do believe I will continue to do things my way. Just like people here sharing tips etc, God forbid we didnt ALL pay for the book or class the tips came from!

I guess all of us should most likely just close down and let big business have it. Disney and Walmart apparently dont have enough money, now they have wannabe attorneys defending them on cake deco boards!

blittle6 Posted 13 Oct 2005 , 5:54pm

We are all friends here....I don't think anyone was intentionally being snotty/snooty...or at least I hope not. This is a friendly helpful board, not one where we are mean or rude to each other. We are just here to share info, experiences etc.

Welcome to CC RainbowZ.

rainbowz Posted 13 Oct 2005 , 6:36pm

Thanks, blittle6
(and lisa for cleaning my post up.)

Kay,

No one is recommending everyone stop making cakes, or give the biz up to the big corps. I'm simply pointing out that these characters are very, very aggressively protected by their owners (did I mention "very"?)and there is clear legal precedent that shows using them without proper licensing is not allowed.

Now you say you've never made a character pan, yet you said before you put such cakes in a box and sell the box. I guess I'm just not following what you are arguing against then.

The link lisa kindly supplied above confirms what I pointed out: these characters are owned by their respective corps, they are very picky about how it's used and quite definitely don't allow people to make profits off them - not without a license with strict definitions of use.

And no, I'm not a legal expert or wannabe attorney, I simply come from the graphics field where these specific "intellectual property" legal issues are at the forefront. Sorry if my sharing this info set off a nerve.

Let's all have cake, shall we? Preferably not a character one. icon_wink.gif

theresethetightwad Posted 13 Oct 2005 , 6:49pm

I would love to get started in a real cake business. However, I have yet to find someone that sells cakes in an legal manner from their homes. No license, inspection, taxes paid, etc. Because of this, why would any of these people worry about copyright infringement? If the income doesn't exist, why would they worry if anyone came after them? I had hoped for advice and such on how to get started, but it's been frustrating, as it seems to be a "cash only" cake market out there, except for the big bakeries.

Just wondering. Any responses?

Lisa Posted 13 Oct 2005 , 7:01pm

Laws/guidelines vary state to state. There are those who run successful, legal businesses from home like Earlene for instance. I think reading her story (especially the legalities section) might help...

http://www.earlenescakes.com/business.htm

http://www.earlenescakes.com/business03.htm

thecakemaker Posted 13 Oct 2005 , 7:10pm

theresethetightwad ~ there are several "legal" decorators on the site. This has been discussed in other posts. You have to keep in mind what this site is about - most of us are amateurs that are learning or would love to eventually turn this into a business. Most decorators that do this legally on a large scale basis aren't going to be surfing the web looking for "how to's" or decorating tips. This is a friendly site for those of us that love what we are doing and a good place for us to help and be helped!

Debbie

CakemanOH Posted 13 Oct 2005 , 7:39pm

dOES ANYONE KNOW IF YOU CAN PURCHASE THOSE PLASTIC ELMO'S AND BRATZ AND SCOOBY DOO'S AND USE THOSE ON YUR CAKES LEGALLY?

JoAnnB Posted 13 Oct 2005 , 8:06pm

ceculsk-buying a plastic toy and putting in on a cake is not an infringement. Reproducing a licensed character, or selling a shaped cake that is licensed IS an infringement and against the law. Those charachter pans usually have a label that says "for personal or home use only"

It is always best to make INFORMED decisions, when it comes to bending or breaking the law. It is best to KNOW when you are taking a risk and be able to carefully weigh you chances.

I have a licensed kitchen, and pay insurance premiums to protect my business. However, if I choose to ignore the laws, it will be at my own risk. My rule for myself is Better safe, than sorry. If you are caught, it can be very expensive and can cost you your business.

JoAnn

KayDay Posted 13 Oct 2005 , 8:06pm

Now you say you've never made a character pan, yet you said before you put such cakes in a box and sell the box. I guess I'm just not following what you are arguing against then.


icon_cry.gif
(sigh).....I DO have a legitimate store and didn't say that I had never MADE a character pan cake before. I said I had never had an order for one. However I DID have a business plan and pricing list and that was and is my policy for those cakes. I WONT sell them. But should someone want one I would sell them a nice cake plate ..carrier...etc...and GIVE them the cake. I am finished with this topic. Don't forget to tip your baker...I'll be here all week. icon_biggrin.gif

sdfgarcia Posted 13 Oct 2005 , 8:40pm

I didn't really mean to open up a big ol' can of whoopass on this one.

Thanks to all for your feedback, and the links are helpful. I have never charged for a licensed cake (packaging or not), and since I'm just a home baker anyway, that seems like a pretty safe approach.

Quote by @%username% on %date%

%body%