Licensed Characters-Legal Questions
Decorating By springlakecake Updated 11 Jan 2009 , 7:20am by sweet1122
I just want to be sure I have this straight. I know it is illegal to do licensed character cakes such as 3D cakes, free hand drawings, chocolate transfers, buttercream transfers etc. It isnt illegal to purchase figurines/cake toppers/toys etc and place them on a cake and sell it right?
Also I assume copying other trademarks is probably illegal too? For instance coca cola or M & M's etc?
I think it's really a matter of judgment. I can't see a huge company like Warner Bros. or Coke suing someone because they created a cake with their logo; unless it was in a competition, televised, or you were making some serious money off it. It would have to be something that drew their eye towards your business. Because, really, it cost a lot of money to take someone to court, and look at all the licensed cakes that are done just on this board. They can't go after everyone, and they may not want to; free advertising! Most likely you'd get a letter in the mail saying to stop using their licensed logo.
If they are licensing their product for sale (such as a cake topper), then as long as you purchase it, you've gone by the book. Now, if you began selling them for $1,000. each - you may catch their attention!
If you freehand the M&M guys on a cake and sell it, it's trademark infringement and illegal. If you buy the M&M character cake toppers and put them on the cake, it's legal. M&M gets money from your purchase of those character toppers, and they can control the way their characters are portrayed (thier likeness is consistent...ever seen a really bad version of a Barbie, Sponge Bob, Mickey Mouse....? Their creators don't like that). This goes for pretty much any licensed character, design, or logo. Character pans, such as a Superman cake made in a Superman pan, are okay to make for home use but not for commercial sale.
Merissa, you got it right. If you buy the licenced product, you can sell it. You just can't reproduce the licened product without thier permission.
Acts238girl is exactly right. Chances are no one will contact you or care that you're selling a cake with a licensed character on it, and truthfully the evidence is soon gone (cakes get eaten!). A "cease and desist" is generally what is issued by any company (a demand to halt any activity infringing upon their trademark), and it's basically a letter telling you to stop or deal with future legal action.
Small bakers can and have gotten sued over cakes. From what I've heard it isn't a matter of how much money they get so much as if they don't protect their image all the time it eventually will become public domain.
They also get plenty of money if they do take you to court, it isn't a $100 fine or something, it can be thousands of dollars.
Think about it. Record companies are getting tens of thousands of dollars over someone illegally downloading music for their own use and people are thinking that a company won't go after you for making money off their image. 
Disney is the most aggressive about protecting their images so they're the ones to stay farthest away from.
Even if you don't get caught it still isn't legal.
And not all the character cakes on here have been made for sale so it isn't a good idea to use this site as an example. Many of us are either not professionals or only make characters for our kids or relatives who we give them to.
so that goes for the designer purses also? we cant use their logo on cake purses?
Pretty much. Go to the purse designer's website. See a little c or an r or a TM inside of a circle close by? That should pretty much seal the deal as to whether or not it is copyrighted. Basically, every famous recognizeable logo in the world is protected. Just because Coach and D&B and Prada don't go after everyone who does it doesn't make the infringement any less.
If you buy a character kit or a licensed edible image like this http://www.globalsugarart.com/product.php?id=20964 you bought one time use to sell that product. You cannot print edible images on your own printer of licensed characters, make fbct's, fondant figures...
There are people whose job it is to protect these multi-million (billion?) dollar companies. If you are advertising on your website photo's of character cakes you have made and essentially saying that you will do that, the evidence is not gone, it is right there saying you are infringing and willing to continue. You can be fined, sued, taken to court... And while that may cost money for them, they have it, and you will have no leg to stand on.
Yes, same with designer purses. I've seen people make G's on a Coach purse instead of C's, and that's okay, but if I were a customer and spending big money on a Coach cake, I wouldn't want G's. I'd want the real thing. Customers don't really understand why you can't legally do it unless you explain it to them. Still, some bakers will do it. Home bakers can get away with it more easily since their products aren't on public display in a bakery. Doesn't mean it's okay for them, it's just easier for them to get away with it. I do know of a bakery that will do it also, and they don't display those cakes, but keep them boxed in the back. Chances are they'll never get caught, but it's an expensive risk.
Hi merissa,
I've attached a link to another thread on the same subject, if you would like more information.
http://www.cakecentral.com/modules.php?name=Forums&file=viewtopic&t=612498&postdays=0&postorder=asc&&start=0
I think it's really a matter of judgment. I can't see a huge company like Warner Bros. or Coke suing someone because they created a cake with their logo; unless it was in a competition, televised, or you were making some serious money off it. It would have to be something that drew their eye towards your business. Because, really, it cost a lot of money to take someone to court, and look at all the licensed cakes that are done just on this board. They can't go after everyone, and they may not want to; free advertising! Most likely you'd get a letter in the mail saying to stop using their licensed logo.
This not true, and is simply irresponsible advice. It is against the law to make a profit from someone else's trademark or copyright, and big companies (DISNEY) DO sue Suzie Homebaker for infringing on their copyrights. The fine per violation is $50,000. People could lose their homes over it.
Please check out the linked thread and do some more research. No one should ever lose their home over a cake.
And in case this sounds too harsh - yes, I know it sucks. Yes, I know it's fun to make Mickey Mouse and Dora and Elmo cakes. I know that everybody wants them for their kids. If you make them for your own kids/families for free, then it's ok (but for goodness sake, don't post the pictures on your web site).
WOW 
I had no clue about all this. I had not even thought about it!
I have my small share of those, and in the gallery! Good thing they were for family and one neighbor, I bake from my home. I better get well informed and read everything I can about it. Thank you, thank you for posting this and all the info. God bless.
uggg. I thought I had cleared up my confusion, but now reading the other thread, I guess I am still confused about the toy/figurine issue.
If you order a kit (the toys/figurines as you are asking about) from Decopac or Bakery Crafts it IS legal to use them. Your bakery is no different than the grocery store who purchases and uses the same. You cannot draw, copy for an edible image or carve a trademarked image or character and resell it. You can, however, make it for free for your family.
When you purchase the item from a distributor as stated above, you are buying the license to use that kit that one time.
okay, understood, what if you don't buy a "kit" from one of those places? What if I want to plunk a my little pony on the cake or do a Barbie cake? Do they have to be figures from the cake kits?
okay, understood, what if you don't buy a "kit" from one of those places? What if I want to plunk a my little pony on the cake or do a Barbie cake? Do they have to be figures from the cake kits?
If you purchase a My Little Pony or other character figure from a store such as Target and put it on the cake then you are okay.
Again, if you are not selling the cake (or accepting any form of payment for ingredients, your time, bartering, etc.) then it is fine.
Normally if I have a request for a charcter on a cake I ask the customer to purchase the toys or figures themselves.
They can't go after everyone, and they may not want to; free advertising!
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No, it's not free advertising. What I've read is that unless they go after each and every violation and infringement of their copyright, then they lose the right to go after anyone on the copyright. They can't pick and choose .... they have to go after everyone if they want to protect their property from EVERYONE.
So to be clear the little bakery I went to while I was on vacation that had about 50 character cake pans on the wall renting them for $2.50 a day which is legal, but will make the cake for $35.00 is illegal. You can not sell charater cake pan cakes either. I am just wondering how this bakery will get by with this and for how long before they will get caught. I will be reading the town's newspaper everyday for the headlines "Bakery caught selling illegal cookie monster and now has to pay up."
Just to throw in another wrench:
I once posted a question about whether it was OK to use a licensed character fbct on a cake if I wasn't SELLING the cake to anyone (just making it for neice/nephew, etc), and I was told that I could NOT use it even then.
The analogy I was given was: say I go to a book store and buy a book (i.e. the licensed material). I bring it home and decide to copy it (photocopy) for a friend or relative without asking them to pay for the paper, the book, or anything else. It's still illegal to reproduce and distribute this book, even if I am not charging the recipient any money for it, because it is copyrighted material whether I accept money for copies of it or not. Am I making sense?
Anyhow, that's what I was told in response to "can I give away a character cake, even if I don't take any money for it?" I know that sometimes advice is given in these copyright threads that you can use an image if you are not selling the cake, just making it for family or whatever for no money.
So to be clear the little bakery I went to while I was on vacation that had about 50 character cake pans on the wall renting them for $2.50 a day which is legal, but will make the cake for $35.00 is illegal. You can not sell charater cake pan cakes either. I am just wondering how this bakery will get by with this and for how long before they will get caught. I will be reading the town's newspaper everyday for the headlines "Bakery caught selling illegal cookie monster and now has to pay up."
From this thread: http://www.cakecentral.com/modules.php?name=Forums&file=viewtopic&t=594266&postdays=0&postorder=asc&highlight=copyright&&start=45 , BCJean posted info that Wilton put out re: copyrights. I have quoted it below (bolding added by me):
A note from Wilton Enterprises on copyright issues
LICENSING GUIDELINES ON PRODUCT USE
All licensed character shaped cake pans, candy molds and cookie cutters are for consumer home use only. Stores/shops cannot make cakes, cookies or candies from our licensed products and sell them to consumers. These "mold making items" are strictly prohibited for any type of commercial use since the licensor has neither the method to control the quality of the reproduction of the character nor the ability to earn royalties on sales of the "finished" product. This applies to both baked and craft type products.
Free-hand or copied character designs cannot be drawn or iced on top of a cake, cupcakes, or cookies and sold for any type of commercial purpose.
Once again, the licensor cannot control the quality and is not earning a royalty on the product created around their character.
Licensed pans cannot be rented to consumers by stores since the licensor is not earning a royalty from the transaction.
Generally, creating any type of image that looks like a licensed character that is sold for commercial purposes is prohibited unless there is a specific licensing agreement with the licensor for that product and royalties are paid each time the product is sold.
So to answer your question, yes, it appears that bakery is operating illegally. But just because you know of ONE person who's doing it, doens't make it right.
Just because I might know ONE person who grows marijuana in their garage, doesn't make it ok for ME to do it, too.
Just because I might know ONE person who grows marijuana in their garage, doesn't make it ok for ME to do it, too.
And even if they're only growing a little doesn't mean that the cops will ignore it if they get caught. 
I was told by my cake decorating instructor that making and selling the (for example) Elmo face pan would be illegal, but making the same Elmo face pan and placing purchased Elmo figurines on it was okay. I haven't done any yet, but I want to make sure I have everything right if the day comes.
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