Trademark

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Breakfast Diva's picture
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Has anyone here tradmarked your business name?

I've always sold a self made cookbook and it's been very popular. Our signature cookie is hugely popular. People return because of it. It's been served here for the 23 years the b&b has been here. I do include it in my cookbook. It's one of the main reasons people buy so many cookbooks here.

My concern is that when I do a more significant cookbook and hopefully sell more of them, this recipe will appear all over the internet. It's a very unique recipe and I have never seen it anywhere else.

I looked into copyrighting the recipe, but that's impossible. A recipe can not be copyrighted. It's considered a matter of fact. From the copyright website:

Mere listings of ingredients as in recipes, formulas, compounds, or prescriptions are not subject to copyright protection. However, when a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection.

Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to names, titles, short phrases, ideas, systems, or methods.

The name of the cookie has our b&b in the title. It looks like I can trademark the business name, and if anyone then uses it to reproduce our recipe, I can have them take it down.

The reason I'm so protective about the recipe is that someday I may want to take this cookie to produce commercially.  Yes, they are really THAT good. 

Another reason to trademark our name is to have more control over who uses it without authorization. Not typically a big deal, but you never know what will happen on the internet in the future.

The fees for a patent are pretty steep. $375 & up.

A copyright is cheaper, but a business name can not be copyrighted.

Any thoughts?

Arks's picture
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egoodell wrote:

They are totally oblivious to the fact that the wine industry is bringing huge amounts of tax dollars here.

Drives me crazy. We deal with that on the local level all the time. So many people are just more interested in showing they have authority than in using common sense and working for the common good.

Could you charge it as all-inclusive at time of booking, then give them the money at tasting time to go pay for the tasting themselves? Seems like most people would understand when you explain they have to personally hand over the money for their tasting.

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egoodell's picture
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 This is off the topic, but I wanted to warn you all especially those who have larger inns about playing music.

We use the music off the Bose stereo or Dish Network which has music channels.

I know we have discussed the fact that technically we must purchase a license to do so.

I have always figured, "who would go after a two (now three, soon four) room B&B?"

The wineries in our area are all much much smaller than those in Napa, California. If you would have told me last year this was going to happen I would have laughed you off.

The industry went to three wineries I know for sure and probably every winery in our area, fined them, and made them pay $2000 for a yearly license to play music.  They must be out looking to replace the income they are losing.

I understand the only way out of this if they come knocking is to be playing original music with permission of the author. So I may start looking to purchase CDs of local musicians and get their consent to play. 

No, I still don't think the industry will show up at my door, but we have lots of local music so I may as well pick up some and offer it for sale in the inn to support local business anyway.

RIki

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Madeleine's picture
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This has not happened to us but it did happen locally. They called to ask what music the guest house played during meals. 10 days later, the guest house got a bill for the music fees. This was an isolated call as far as I know because we asked around if anywhere else that served meals got the call.

So, be warned they do not have to show up to send a bill.

I'm not sure a local artist CAN give you permission if they are with a record label.

We don't play music here, but if we did it would off the satellite dish as they KNOW we are a business and charge us accordingly.

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egoodell's picture
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Madeleine wrote:

This has not happened to us but it did happen locally. They called to ask what music the guest house played during meals. 10 days later, the guest house got a bill for the music fees. This was an isolated call as far as I know because we asked around if anywhere else that served meals got the call.

So, be warned they do not have to show up to send a bill.

I'm not sure a local artist CAN give you permission if they are with a record label.

We don't play music here, but if we did it would off the satellite dish as they KNOW we are a business and charge us accordingly.

I'm not talking about a local artist that recorded with a major record lable. I'm talking about the artists who have their own CDs done here locally in a rented studio.

RIki

Breakfast Diva's picture
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Riki, it's a great idea to find local artists and play their music. You can buy a few of their CDs and offer them for sale. That's a win, win for everybody.

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Breakfast Diva wrote:

Riki, it's a great idea to find local artists and play their music. You can buy a few of their CDs and offer them for sale. That's a win, win for everybody.

Yep. Now we have the ABC going around and telling the wineries we cannot pay our guests' tasting fees. I'm so sick of all this infernal red tape. Now I can't do my all-inclusive wine tour. Even if we lower our rates it's still not all inclusive. Dumb bureaucrats.

Riki

Weaver's picture
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Rikki....are you kidding, does it really matter if you pay the winery fee on behalf of the guest or if the guest pays?  Really....is the commission saying you are buying alcohol?  Isn't this just like a package where a guest gets a dinner at a local restaurant as part of the package and it includes a bottle of champagne? 

Or what about the packages that include champagne and strawberries?  Does it look like they will stop that too?

 

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Weaver wrote:

Rikki....are you kidding, does it really matter if you pay the winery fee on behalf of the guest or if the guest pays?  Really....is the commission saying you are buying alcohol?  Isn't this just like a package where a guest gets a dinner at a local restaurant as part of the package and it includes a bottle of champagne? 

Or what about the packages that include champagne and strawberries?  Does it look like they will stop that too?

 

 The B&B is a separate company and regs than the wine tour company.

I have a B&B license and  the sparkling wine that comes with the room is $9 of the room rate.

I am not allowed to give it to them as that is "enticement"

The reason they are telling the wineries we cannot pay for the tours is the same "enticement"

Once of the winereries is owned by a lawyer who has spent huge amounts of his own money in Richmond (captial) working on getting the laws more reasonable.

They are totally oblivious to the fact that the wine industry is bringing huge amounts of tax dollars here.

RIki

Madeleine's picture
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Around here it matters. I cannot offer wine in a room package because I do not have a license to sell alcohol. If the guest pays me for the package and the package includes alcohol I have sold the guest the alcohol. I also cannot GIVE alcohol away for the same reason.

So, long time guests who I know love a nice bottle of wine? They're gonna have to buy it at the store, I cannot even gift it to them.

Not the same as dinner at a restaurant because I am not providing the alcohol, the licensed restaurant is.

If a guest wants a bottle of wine in the room on arrival? (Not something I offer but people do ask.) I tell them they have to call the wine shop and order it. They deliver it right to the room, I never touch it.

Can't do cooking classes- no commercial kitchen. Can't do afternoon tea- no commercial kitchen and no license. Can't do afternoon refreshments that aren't pre-packaged and unopened when served to the guests- not in the purview of a B&B to offer 'meals' after 11 AM.

And no one seems to know why. Can't get an answer from the state on anything.

We also (statewide, not B&B's per se) cannot buy wine online. Why? Because teenagers will be lining up on the doorstep to snatch that wine delivery right out of the UPS gal's hands and run off cackling into the woods to get drunk and then get in their cars and cause mayhem on the roads driving while intoxicated.

Recently overturned ruling is one that prohibits anyone under the age of 18 from even SEEING someone tasting wine at a wine tasting in a store. Little shops had to paper over their streetside windows to prevent kids from lining up outside to watch adults take wee sips of wine while listening to the wine importer extoll to virtues of that vintage. Wine shop owner's CHILDREN could not be on the premises. (Interesting problem when they live on site. They had to stay away whenever there was a tasting or be confined to their rooms.) Adults popping in to buy a bottle of wine for dinner had to lock their kids in the car to come in and buy wine.

PS- prohibition supposedly started here in the 1850's and by gum it ain't over yet! We still have dry towns.

 

gillumhouse's picture
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West Virginia used to be one of the wettest Dry States. You could only get "near beer" (3.5% alchohol) and liquor by the drink was only in private clubs (membership sold at the door for 50 cents). Bottles of booze was sold only in the State Liquor Store. I forget when things got real (they probably had a run of deaths from bad shine) and they realized just how much tax money was being lost so things got legalized.

gillumhouse's picture
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Unless I have a Beer & Wine license I cannot include wine in a package - we are considered selling it because they consider the cost of the wine (champagne) is included in the package price. That is one reason I did the sparkling cider.

Weaver's picture
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It is really interesting (not that I didn't know this already) how different the regs are for this or that from one county or state to another.

My soon to be new home state limits to 5 rooms in the main house, but unlimited cottages.  I can give a guest a glass of wine or beer (no hard liquor) any time I want.  I can even feed them dinner if I so choose, as long as the kitchen is inspected, does not have to be commercial with commercial equipment, just a separate hand washing sink, and the cleaning supplies must be in a locked cabinet - but that applies to brekkie as well as dinner.

I can't serve anyone anything if they are not a lodging customer, however, I can feed the lodging customers anything I want anytime I want as long as it ain't liquor or poison. Eye-wink

I can (and this came straight from the ABC people) have a bottle of wine and glasses in the room, for the guest to enjoy, and I am not required to do this for every guest of every room, but may choose to do so if I feel it will be appreciated.  She knew and I knew exactly what she was saying, and how to do what I want without having to go through the ABC licensing.

 

 

 

gillumhouse's picture
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In WV, 6 rooms or less are not required to have a commercial kitchen and can serve registered guests any meal as long as there is no alcohol.

Arks's picture
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I guess that's why the Coca-Cola recipe is so secret. They can't protect it with a copyright.

I heard on the radio that the family of the guy who invented Pepsi is now in court vs. PepsiCo because they want to release the recipe publically for some reason.

If you don't want the recipie spread around the Internet, keep it secret.

Seventy years ago a man in our town invented a toy for his child, a wooden horse on springs. He eventually produced it commercially as the "Wonder Horse" because Arkansas' nickname at the time was "The Wonder State". He once told my mother that he spent almost every cent the horse made him defending his patents and trademarks.

So getting a trademark isn't a guarantee anyway, since someone with deeper pockets can run you out of money before you beat them in court. Very unfair, but not uncommon.

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In doing my due diligence what I found out from a lay person's stand point is trademark is the trade name of a company in a particular field.  Copywrite pretains to written words.  Much like liable vs slander.  I can not use the name of the person who built the main cabin on the property I am purchasing because "his" company holds a trademark for lodging/hotels under that name. 

What my lawyer told me (and take this as free advice - get a lawyer if you really want to be sure) is I can trademark Weaver's Home Grown Orange Juice if I choose to grow and produce my orange juice.  I cannot copywrite my orange juice muffin recipe unless it is published in a comprehensive cook book.  Then the book would be copywritten.  If I choose to publish via a blog, web page or idependantly printed small cookbook, without copywritten attachments, I am esentially giving up my rights to claim it as my own, therefore I give up my rights to persue legal action toward anyone who uses it, with or without my permission.

However, should you choose to trademark your inn's name, and include as a product your secret cookie recipe then you will have future recourse.  Such as Breakfast Diva Inn's Famous Orange Cookie. 

What has been suggested is leave out or adjust an ingredient.  Not so much as to make it bas as that would be self defeating, but just so it is not as good as yours.  Otherwise be happy people love the cookie and keep coming back for it along with your hospitality.

 

seashanty's picture
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i think if you google your inn name and 'cookie' or 'cookie recipe' you will likely find that others have posted it online.

the internet is like that.  it's in your book, someone shares it.

maybe a good strategy instead of telling someone to take it down would be to insist that a link to your site be included wherever someone posts your recipe. 

i would go the trademark route if you are serious about doing a commercial offering.

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Madeleine's picture
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seashanty wrote:

i think if you google your inn name and 'cookie' or 'cookie recipe' you will likely find that others have posted it online.

Lo and behold! Quite a lot of people have blogged about this cookie! And they've mentioned the great stay they had, too.

Breakfast Diva's picture
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It's amazing how often the cookies are mentioned in reviews and blogs. People lift up our little cook book from the counter and then say "is the cookie recipe in there?"  That seals the deal, they buy the cookbook! We also get people who want to buy them to take home with them, but I don't sell them......yet. That's how I know that if we took them to the commercial market it would be pretty successful.

My granola recipe is also another biggie. If I have enough supply on hand I'll sell the granola to our guests.

Breakfast Diva's picture
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It's true, it's been posted a couple of times, but I would hate for it to get to the point where it shows on google when not including the search word 'cookie'. Also, the more popular post includes an item that I would never add to the cookie and has the wrong oven temp which would totally change the texture. It's one of those posts where if someone followed it, they would say it didn't taste as good as what they had here.

I know I can't stop it totally, and it's not an issue now, but I'm seriously considering taking it to the commercial market now that we have a commercial kitchen in the inn. I'm just trying to think of any drawbacks for the future.

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Breakfast Diva wrote:

It's true, it's been posted a couple of times, but I would hate for it to get to the point where it shows on google when not including the search word 'cookie'. Also, the more popular post includes an item that I would never add to the cookie and has the wrong oven temp which would totally change the texture. It's one of those posts where if someone followed it, they would say it didn't taste as good as what they had here.

I know I can't stop it totally, and it's not an issue now, but I'm seriously considering taking it to the commercial market now that we have a commercial kitchen in the inn. I'm just trying to think of any drawbacks for the future.

If that is the case, I'd be posting my corrections online as innkeeper (if possible wherever you tind that) because I wouldn't want people to make my awesome recipe, be disappointed and think ... eh ... not so great. 

 

Breakfast Diva's picture
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A handy thing I learned when doing the research on recipes is that you can duplicate any recipe online if you use the ingredients and cooking instructions. What you can't use are the personal descriptions or any writings by the original author. Good to know for when you share a recipe on FB or blog that wasn't created by you. You can, but you don't have to include the source of the recipe.

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Thank you so much for this information!  I've been running this Inn for 3 months and have managed to find a few recipes that people just love.  I often wondered if I could reproduce the recipe without being required to credit the source.  This is great news!  

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K9 wrote:

Thank you so much for this information!  I've been running this Inn for 3 months and have managed to find a few recipes that people just love.  I often wondered if I could reproduce the recipe without being required to credit the source.  This is great news!  

I have been told the instructions need to be different but the listing of ingredients does not. I don't know if that is totally true or not.

RIki

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egoodell wrote:
I have been told the instructions need to be different but the listing of ingredients does not. I don't know if that is totally true or not.

RIki

I don't think everyone just lets it go, either.  I use a spice biscotti recipe from Coo k's Illus trated, and the woman from Inn Cuisine wanted to use it until she realized it was one of theirs. She said they go after you for putting it on the web, even if you attribute them.  Their own website is by subscription. 

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Weaver's picture
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muirford wrote:

egoodell wrote:
I have been told the instructions need to be different but the listing of ingredients does not. I don't know if that is totally true or not.

RIki

I don't think everyone just lets it go, either.  I use a spice biscotti recipe from Coo k's Illus trated, and the woman from Inn Cuisine wanted to use it until she realized it was one of theirs. She said they go after you for putting it on the web, even if you attribute them.  Their own website is by subscription. 

If their web site is copywrite protected then any use of or reproduction of said text is subject to copywrite laws.  You can use that recipe to make product, however you canNOT publish it in any form, including a hand written copy given to a guest, without their (the owner of the copywrite) express permission, even if you attribute it to them.

You can however (again check with a lawyer if you are going to go commercial with it) write the list of ingredients down, and explain (verbally) how to do it.  I for one would not include any recipe in any inn cookbook that I did not create or have the express permission of the creator.  It sucks but this is how it is.

Now whether a particular person/company twitches out and persues legal action toward you for a self produced/published little 20 page compliation of recipes which are ones you use in your inn is another thread altogether.

Attributing text to someone can still be considered copywrite infringement if they do not give you permission to do so.  The list of ingredients can't be copywritten, but their narrative can, and if published on a subscription site - or even non subscription site, you can bet your bottom dollar it is.

When I was doing a lot of freelance writing, each article was either going to be copywrite protected or it wasn't.  Which meant if I wrote an article for XYZ company which included my father's famous ginger cookie recipe, I was in essance giving up my rights to claim that family recipe as my own, if in fact the article was going to be copywritten. 

I in fact turned down an assignment to produce three original recipes because part of the terms of the assignment was giving up my rights to those recipes.

This is in part why people guard their family recipes so tightly, even if they don't realize why they are doing it at the time.

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I'm not sure how to go about this. But, in saying that a business name can't be copyrighted, for what then does McDonald's or Disney sue other businesses trying to use that name. There is no way you can open a business that sells any kind of food and call it McDonald's even if it's your own name. Is that a trademark?

We knew a couple who made a bbq sauce with a really catchy name and a dinosaur on the label. The folks from Japan who own the trademark on Godzilla sent them a cease and desist letter because the name of the sauce and the use of the dinosaur were deemed 'too close' to the Godzilla name.

I think if you are planning to market this cookie alone, you might want to not put it in a larger cookbook. It's like the Toll House cookie. Anyone can make a 'chocolate chip cookie' but only Toll House can lay claim to the 'Toll House Cookie'.

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Madeleine wrote:

I'm not sure how to go about this. But, in saying that a business name can't be copyrighted, for what then does McDonald's or Disney sue other businesses trying to use that name. There is no way you can open a business that sells any kind of food and call it McDonald's even if it's your own name. Is that a trademark

Yes, that would be a trademark.

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 IFyou really want to protect it then you need to do it. Do you think it would be that popular that someone would try to steal it?  May not really be worth all that hassle if you know what I mean.

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