I often buy those Pepperidge Farms frozen cakes. They are about 7” square and fit closely in the box. But as you use the cake and slide the tray with the cake out and in a several times the frosting tends to get smeared on the box flaps and then onto the countertop, your hand, etc. A nice glass or plastic cake tray with a lift-off lid would be great but all of them are for large cakes and are a waste of space.
Can I design one and market it as perfect for Pepperidge Farm cakes? I’m surprised they don’t sell one themselves.
Just say that it is perfect for small frozen cakes and confections. That way you bypass the Pepperidge Farm owners while including all other makers of such goodies.
I can’t think of any reason why you couldn’t do it. I don’t think it would infringe on Pepperidge Farm’s cake patent unless they sold the same thing, which you could easily verify. I’m surprised someone hasn’t already done it, so this may be your road to fame and fortune.
Likely this. Mentioning their specific brand or product, or including their logo on your product, on your packaging or marketing materials, without their permission, would probably lead to some manner of legal action on their part.
Exactly. Pepperidge Farm almost undoubtedly does not have a:
…but they do have trademarks on their brand name and logo, and rights to their “trade dress” (i.e., the color scheme, fonts, style, etc. which they use on their packaging and advertising).
A product, even a complimentary product like the OP’s proposed tray, which used any of Pepperidge Farm’s names, logos, or packaging appearance, without permission, would likely be seen as being deceptive to consumers, and causing confusion as to who is making/marketing that tray.
So, “a perfect tray for popular frozen dessert cakes” is likely fine. “A perfect tray for Pepperidge Farm’s frozen cakes” probably is not.
I don’t think that’s the case at all. At least for trademarked names it’s definitely fair use for a non-affiliated product to use them in an informational way that doesn’t claim association or endorsement by the brand in question. E.g. all the “own brand” products that say what brand name they are equivalent to…
Fair, but it would depend on the language that the OP would use.
Trademark owners likely will see a difference between informationally saying “compare to the ingredients in Benadryl” (which makes it clear that what is in the box is not Benadryl) and language which specifically refers to Pepperidge Farm’s cakes, and may or not make it clear that the proposed tray isn’t made by Pepperidge Farm, or using the Pepperidge Farm name under license. It comes down to if the use of the other company’s trademark is used in a way that is clearly non-confusing.
Also, I suspect that you don’t know (nor do I) if the makers of store-brand OTC drugs (which is mostly where I see those “compare to Brand X” violators) have, in fact, gone through the hoops of getting legal permission to use the other brands’ trademarked names.
Part of the issue, I think, is that he’s thought of an idea which is fundamentally made to compliment one product line, from one manufacturer – the square Pepperidge Farm frozen cakes. Is there a way for him to market such a product without getting Pepperidge Farm’s lawyers in a twist? Probably? But that’s what IP lawyers are for.
I would think you could do so, as long as you didn’t actually represent yourself as being part of Pepperidge Farm, or anything like that.
I mean if you think about it, aftermarket automotive product manufacturers do this as a standard part of their business process, up to and including showing their stuff installed on a specific make and model of vehicle.
I’d think that doing what @Czarcasm says, and showing an actual Pepperidge Farm cake on your gizmo would work just fine.
Those cakes used to come in boxes with a lift-up lid, which I preferred. I suppose that made it harder to take it out completely if you wanted to, but I invariably eat them from the box.
The newer slide-out packaging annoys me and does create the mess you describe. Alas, like a lot of products these days, they have “improved” it in ways that make it worse.
Then, on the box, show it being used with a cake that’s both clearly not a Pepperidge Farm cake but also clearly meant to imply a Pepperidge Farm cake based on the size.
Incidentally, if you can find a tupperware type container that the cake would fit in, use it upside down. Set the cake on the lid and put the container over it. Or maybe get a razor blade or sharp knife and cut the top of the box open so you don’t have to slide it in and out.
I play board games and there are companies that design and sell upgraded components for games that are produced and sold by other companies. And they will clearly state that these components are designed to be used by this specific game, which they will identify.
It’s not explicitly clear in the article, but the “use a registered trademark without permission” in that article is specifically referring to to using it as a source indicator of your product. That is, passing off your product as the same or originating from the same source as the original. That is not what we are talking about here.
This is actually a pretty nuanced area of trademark law and it’s difficult to define bright line rules, i.e. this is ok but this is not. Essentially though, it is generally ok to market your product as being compatible with some other trademarked product from another manufacturer. You need to be very clear to distinguish that your product (and your company) are not affiliated with the other product or the manufacturer.
Basically, as I stated above, the whole point of trademarks is to function as source identifiers, to distinguish products and companies from each other. If how you are marking your product is causing confusion, diluting the value of other’s marks, or otherwise doing something to hinder the public’s ability to distinguish who is making what, then that is when you are going to run into problems.
Incidentally, companies make products suitable for use with other companies products all the time and mention such products on labels and advertising. Consider just one simple example cell phone cases. Almost all of them reference what phones they are compatible with (e.g. “silicone case for iPhone 16”). Here’s just one of thousands of examples.
One issue is that legally a trademark holder must protect it else lose it. That is why anything that in the least bit be construed as to be trademark infringement will be met by IP attorneys even if the owner doesn’t want to make it an issue. That’s why Disney told a preschool to remove the unauthorized characters from their wall and had to suffer the abuse of looking like ogres.
