Aunt Joy's Cakes Is Being Sued By Sees Candy..
Business By Navyempress Updated 2 Oct 2010 , 3:26am by psambar
I was actually looking at another post on the same website and came across this article:
http://www.iptrademarkattorney.com/2010/07/trademark-attorney-cakes-sees-candy-infringement-lanham-act.html
Looks like Sees Candy is suing a cake shop for using their name on the website. They use the candy in their cakes and because they actually said the name, they are in trouble. I guess I could see them wanting the website to use the trademark symbol or say at the bottom that "Sees Candy is a registered trademark of yadda yadda.." But why would they be mad that a company chose to incorporate their candy in their food instead of a competition brand.. We all buy ingredients like Hershey's, Nestle, etc. but if we actually tell people that we use it, we can be sued? I wonder how many cakers say chocolate covered "oreos" on their websites? Hmm...
If See's is making chocolate chips and chocolate for others to use in their products, I don't understand how they could win a lawsuit for infringement. Doesn't make sense to me for those types of products as they are made to be used as part of another end product.
Under trademark law in the US, if a trademark owner fails to defend the trademark, they risk letting it slip into the public domain (e.g. Kleenex, Xerox). This actually seems like a reasonable suit on the part of See's, if you look at the complaint (linked below) the defendant was actually selling a product called "Sees Chocolate Cake". If they didn't use "Sees" in the name of the product, they probably would have been OK.
http://www.schwimmerlegal.com/2010/07/mix-ins-as-grey-goods-identifying-third-party-ingredients-by-brand-names.html
See's is seeking an immediate halt to the use of their trademark, profits from any infringing products, legal fees, and punitive damages. This case will probably be settled out of court before it gets to trial. Actually it may have already been settled, if you look at the defendant's web site she no longer sells "Sees Chocolate Cake", and the only mention of Sees [sic] is on the home page.
This is the same reason why they all say "rice cereal treats" on the cake shows instead of "rice krispie treats." I noticed that one of them has started saying rice krispies, so they must have reached some kind of agreement with Kelloggs.
Just had a nice chat about this with my DH who is a patent and trademark attorney. In addition to Sees having to protect their trademark, his take is that using the Sees name implies ownership or sponsorship by Sees- meaning that the cake could be seen as an actual product of Sees or that Sees has approved of this product. The standard in trademark cases is 'likelihood of confusion' of the consumer. I can see how a company would want to have strict control over things associated with their name. Let's just speculate - what if the cake wasn't very good. Would you want your name associated with it?
On the other hand...."Hershey's chocolate cake" or "Toll House Pie" would be legal, because they have actually put out these recipes for public use...right?
I think Hershey would have an issue if you sold a "Hershey's Chocolate Cake", as the implication would be that the cake itself was a Hershey product or endorsed by Hershey. If it was called "Chocolate Cake made with Hershey's(R) Chocolate Chips" that would probably be OK, but I'm not a lawyer so don't take my word for it.
Yeah but "Hershey's Chocolate Cake" is actually the name of a recipe on the back of the cocoa powder...so you could not make that recipe and sell it by the name?
You certainly could, but just because that's what Hershey calls it on their packaging doesn't mean they won't have a problem with you leveraging their trademark to sell your products. As was posted earlier, likelihood of confusion is the issue.
See's Candy doesn't sell products to put in other products, they sell products directly to the consumer to eat.
I know, I tried to buy some of their jimmies once.
See's cannot legally stop someone from buying their products and baking them into a cake to sell, as long as the seller does not imply that the resulting end product is endorsed by See's.
Using the name See's Candy in their literature implies endorsement by See's Candy and that is why they were sued.
What's your source on that?
Just using the name "See's Candies" does not automatically mean that an endorsement is implied. For example, if your description states that the cake includes bits of See's Candies(R) Product X with appropriate trademark disclaimers, See's probably wouldn't have an issue, as no reasonable person would assume that See's specifically endorses your cake just because you use See's products as ingredients. Do you see how this is different from calling your product "See's Chocolate Cake"?
So - someone could buy See's candy, use it in their baked goods, and as long as they don't use the name in the description, they would be ok?
Of course...every baker does this kind of thing every day: we buy flour, sugar, and butter with various brand names and use them to make our products.
You would probably even be OK using the name of the product in the description, again as long as you don't imply that the product is somehow endorsed by See's.
I would still try to avoid mentioning brand names whenever possible though, since even if you would end up winning a potential infringement suit, you would still need to spend time and money to defend yourself.
I'm just going to quit posting on any thread you do. You seem to think you are a lawyer and like to fight.
It's not a fight, it's a discussion...it wouldn't be very interesting if no one had any differing opinions, now would it? 
I do not think I am a lawyer, but I am interested in the law, especially relating to IP. I'm certainly not an expert, but I have a basic understanding of how trademark law works and I am comfortable reading "legalese".
If you'd like to back up your earlier statements with additional arguments and/or sources, I would be interested in reading your posts and replying, as I do enjoy debating. But I would recommend sending ad hominem attacks to my private mailbox instead of posting them in the thread, as they don't further the discussion.
yea for example, I use kraft peanut butter in my chocoalte peanut butter cake balls. Just using it is ok, but if I called it "Kraft peanut butter cake balls" that would be wrong...... right?????
Am I understanding this right?
yea for example, I use kraft peanut butter in my chocoalte peanut butter cake balls. Just using it is ok, but if I called it "Kraft peanut butter cake balls" that would be wrong...... right?????
Am I understanding this right?
That's my understanding. If a reasonable person went into a bakery and saw a product called "Kraft Peanut Butter Cake Balls" (apparently Kraft does make peanut butter, but I've never seen it in the US) on the shelf, they could assume that the bakery was reselling a product that was made by Kraft or it was an "official" Kraft product. That would be a big issue for Kraft.
But if you mention in the product description something like "we use only Kraft peanut butter for our products" or "made with Kraft peanut butter", you should be OK, as long as you don't include the brand in the title of your product or otherwise imply that Kraft has anything to do with your product other than making one of the ingredients.
For example, I've noticed several bakeries mention on their websites that they use only Fondarific fondant for their cake designs, there's nothing wrong with this. However, if you started selling a "Fondarific Chocolate Cake", the makers of Fondarific would probably not be happy for two reasons: first, you are implying that the cake was made by or marketed by Fondarific, and second, your use of their brand genericizes the term. If enough people start using "fondarific" to refer to fondant in general, they could lose their trademark. A safer phrasing for the bakery would be "Chocolate Cake with Fondarific(TM) Fondant", but IMO it's probably better to keep other brand names as far away from your specific product names as possible.
Refer to the graveyard of genericized trademarks below:
http://en.wikipedia.org/wiki/List_of_generic_and_genericized_trademarks
oh they dont have Kraft Peanut butter in the states?? How interesting!
OK Jasonkraft - but from what I saw on Aunt Joy's web site all she said was "We use the finest chocolates; Sees candy morsels" and she is being sued.
This is what is confusing. If she is being sued because of that, then we shouldn't say we use Nestle's chocolate chips. Yes? No? (question - not challenge)
OK Jasonkraft - but from what I saw on Aunt Joy's web site all she said was "We use the finest chocolates; Sees candy morsels" and she is being sued.
This is what is confusing. If she is being sued because of that, then we shouldn't say we use Nestle's chocolate chips. Yes? No? (question - not challenge)
The lawsuit was filed several months ago, and in the text of the complaint (linked above in one of my previous posts) See's specifically mentioned that Aunt Joy's was selling a "Sees Chocolate Cake". I'm pretty sure that Aunt Joy's immediately renamed that product and removed most references to See's from their web site as soon as they were notified of the lawsuit.
There are a couple of bakeries in Michigan who got Cease and Desist letters from Morley because they make "Bumpy Cakes." Why? Because Morley evidently owns the name "Bumpy Cake" or something and these bakeries must rename them immediately. One is having a Facebook contest to find the snarkiest name for it! 
The maddening thing about this to me is that we're so sue-happy in this country! I mean, honestly, how much money could Aunt Sue's possibly have made from this cake?
Why not send a Cease and Desist letter first, telling the person to change the name of their product? If they don't, THEN sue!
It's funny, in the letters to these bakeries they did NOT say "stop making bumpy cakes." They just said to stop NAMING them "Bumpy Cakes".
It's funny, in the letters to these bakeries they did NOT say "stop making bumpy cakes." They just said to stop NAMING them "Bumpy Cakes".
Funny that we both mentioned Cease and Desist letters! I'm glad to see someone actually went that route! And why not??? I mean, if Aunt Sue's is selling enough See's Cakes (or whatever) to make See's take notice, it means Aunt Sue's is BUYING See's candies, too! Why not say, "Dear Aunt Sue's, thank you SO much for supporting our business by using our candies in your cake. Please continue to do so!! But we have to ask that you not include "See's" in the name of your product." Now, wouldn't that make you want to keep supporting See's?
That is funny! What I find amazing is that Morley is making an issue over "bumpy cake." I always thought Sanders held that name!!! Who knew? Around here we refer to that as a STYLE of cake, not a ripoff of some brand name. No brand name is used in that name!! 
Honestly, people are soooooo petty!!! 
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