An OK Way to Use Someone Else’s Trademark

Q: My bakery sells cakes with crushed NILLA® wafers mixed into the icing. We call it the “The Nilla Nihilation.” Is that okay?

A: Nope. You can’t use someone else’s trademark like that without their permission.

Q: Then how do we tell people what’s in it?

A: You can use NILLA in the description of the cake, like this: “A vanilla lover’s dream. Moist yellow cake, richly coated with buttermilk icing mixed with crushed Nilla® wafer cookies.”

Q: What’s the difference? I’m still using NILLA. Why can’t I put it in the name of the cake?

A: Describing your cake as containing Nilla® wafer cookies isn’t using NILLA as a trademark. It’s just naming an ingredient. It’s a subtle but very real legal difference.

Q: Okay. Anything else I should know?

A: It’d be a good idea to include this in the fine print: “Nilla® is a registered trademark owned by Intercontinental Great Brands LLC.”

Q: NILLA wafers contain high fructose corn syrup, which, yuck! We found vanilla wafer cookies that don’t use corn syrup. We’re gonna use those instead.

A: Then the description of the cake can NOT include NILLA. Remember Ben & Jerry’s® Coffee Heath® Bar Crunch ice cream? That’s now called Coffee Toffee Bar Crunch because Ben & Jerry’s stopped using Heath® bars.

Q: I can’t believe Nabisco would even care.

A: They will. Many companies have licensing deals with other brands and the trademark owner has to make sure other people aren’t using the trademarks without a license.

Shout out to Ginny J. for asking questions that led to this blog post.

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