"Inspired by" without using the actual characters

[Erilyn]

I saw a post here that addressed a similar question but it didn't answer my question so I decided to post. I've seen a lot of people (on Etsy, Ebay, etc) who sell handmade items that are "inspired by" usually a Disney character. Now I realize we can't paint a picture of Nemo and call it "inspired by Disney's Nemo" but could we make a cookie jar, paint it orange and white, and call that "inspried by Nemo"? (it's not a fish and doesn't look like one, it only uses similar colors, and they dropped the Disney name from it)

In the post I read from several years ago, the woman said she was making scrapbook kits. People want kits that match their vacation theme, so would she be able to sell a kit that contained red, black and white paper and call it "Inspired by Mickey" (mickey mouse colors) or blue, white, and silvery paper and call it "Inspired by Frozen"? Or maybe Mickey themed/Frozen themed? She wouldn't be using any of the actual characters, only similar colors.

I ask because I make soap, and people often want soap colored to match their party theme. They usually have a theme from Disney or another trademark, and I don't know if I'd be getting into trouble by making matching soap for them. The soap would look nothing like the characters, usually it's just a swirl of colors that match the theme (black white and red swirled colors for Mickey Mouse for example).

The other problem with Disney is they made a lot of films based on old stories (The Little Mermaid, Snow White, etc). How would I know what is safe to make?

I uploaded a picture to give an example of what I mean by swirled colors.

 

[army judge]

Generally, color schemes aren't protected by copyrights.

 

[adjusterjack]

If you have to ask if you are infringing, you probably are.

 

[hrforme]

Your problem isn't going to be using the color schemes, but rather that you are using Disney's name as a key word search even though you are not related business-wise to them and do not have their permission. They are one of the companies that do and will go after sellers on ebay and other sites. Lots of people do it, some get "cease and desist" letters.

You can make "matching soap" and you can advertise that you can do it to match the theme of parties -- why limit yourself to Disney ones? Disney parties are usually for kids and honestly I don't know any parent that cared to match the soap to the party theme or to give as a favor...but it is possibly a market. Especially for something like a bridal shower, etc.

 

[zddoodah]

could we make a cookie jar, paint it orange and white, and call that "inspried by Nemo"?

You certainly could. Whether it would be legal to do so would, of course, be a very different question.

would she be able to sell a kit that contained red, black and white paper and call it "Inspired by Mickey" (mickey mouse colors) or blue, white, and silvery paper and call it "Inspired by Frozen"?

Yes, but it would violate trademark law to do so.

I ask because I make soap, and people often want soap colored to match their party theme. They usually have a theme from Disney or another trademark, and I don't know if I'd be getting into trouble by making matching soap for them. The soap would look nothing like the characters, usually it's just a swirl of colors that match the theme (black white and red swirled colors for Mickey Mouse for example).

The other problem with Disney is they made a lot of films based on old stories (The Little Mermaid, Snow White, etc). How would I know what is safe to make?

There's a big difference between making something with colors that match those of Mickey Mouse, Frozen, etc. and marketing your product by using the intellectual property rights of others for your own benefit. A customer may come to you and say, "hey, I'd like you to make me a thousand widgets with colors that mimic those of Finding Nemo, and it would be perfectly legal for you to do so. On the other hand, if you make those same widgets and sell them and use "Nemo inspired" in your advertising, then you are violating the trademark rights of others. Why would you use the trademarked name in your advertising? Because you think it would be to your benefit to do so, but you own no rights in that trademarked name. You'd be sponging off someone else's efforts to profit for yourself.

Generally, color schemes aren't protected by copyrights.

That's certainly true (you can even drop "generally" from the statement). However, color schemes could be (although generally are not) as trade dress. Moreover, as noted above, the real issue raised by the OP's post is the use of others' trademarks.

 

[Erilyn]

Why would you use the trademarked name in your advertising? Because you think it would be to your benefit to do so, but you own no rights in that trademarked name. You'd be sponging off someone else's efforts to profit for yourself.

I don't have a selfish motive and I'm not trying to steal the benefits of other's hard work. The reality of making anything handmade is that customers know you can do custom orders, and they always ask for things that are trademarked. I have a friend who makes custom sugar cookies, and her biggest sellers are always the trademarked characters. She doesn't advertise that she makes them, customers just message her and ask her to. She said almost every cookie she makes is a trademarked character.

Basically I'm asking about this because I'm trying to protect myself. I don't want to cross the line, and since I don't know where the line is I thought I would ask. I have no intention of going as far as my friend has to make actual trademarked characters, but I could understand making soap that matches the color scheme of a party.

I also see others on Etsy and other websites blatantly copying (They paint a picture of Nemo and sell it with the label "Nemo painting") and those shops are never taken down and their product is always up for sale, so this created a lot of confusion for me. As I said I don't intend to copy these characters, but when customers ask me for "Nemo soap" I'd like to be able to offer them an alternative, rather than turn them away (a white and oragne swirled soap for example).

Anther reason for this confusion is when I go to buy my fragrance oils for the soaps, I often find "type" fragrances sold by these fragrance oil companies. For example, "Very Hollywood by Michael Kors Type" fragrance. I also find a lot of "Bath and Body Works type" fragrances. These fragrances mimic the popular fragrances in the perfumes and body sprays, they even use the names in the description or labels of the fragrances. People make soaps with these fragrances, then name their soaps "Very Hollywood by Michael Kors Type Soap" because that's the name that was on the bottle of the fragrance (and because the name will help the soap sell). I don't know if the fragrance company has permission to use the Michael Kors or Bath and Body Works name, but the soaper who used the fragrance certainly doesn't. Is this also not allowed? Where is the line drawn on something like this?

why limit yourself to Disney ones?

I'm definitely not limiting myself to Disney, I just used them as an example because they are universally well known and it helped make my question very clear. If I had said I wanted to make soap with Homestuck colors or Viking Freight colors, that would have been a lot less clear (especially since Viking Freight merged with FedEx and no longer exists). I didn't want to confuse anyone or have to re-explain myself.

Also, for events like baby showers, adults often have Disney-themed parties, and Micky Mouse is popular with both children and adults. I've even seen Disney princess themed weddings. Disney is huge and appeals to the "inner child" of many adults, so it's not uncommon for adults to want it.

 

[army judge]

I don't have a selfish motive and I'm not trying to steal the benefits of other's hard work. The reality of making anything handmade is that customers know you can do custom orders, and they always ask for things that are trademarked. I have a friend who makes custom sugar cookies, and her biggest sellers are always the trademarked characters. She doesn't advertise that she makes them, customers just message her and ask her to. She said almost every cookie she makes is a trademarked character.

Basically I'm asking about this because I'm trying to protect myself. I don't want to cross the line, and since I don't know where the line is I thought I would ask. I have no intention of going as far as my friend has to make actual trademarked characters, but I could understand making soap that matches the color scheme of a party.

I also see others on Etsy and other websites blatantly copying (They paint a picture of Nemo and sell it with the label "Nemo painting") and those shops are never taken down and their product is always up for sale, so this created a lot of confusion for me. As I said I don't intend to copy these characters, but when customers ask me for "Nemo soap" I'd like to be able to offer them an alternative, rather than turn them away (a white and oragne swirled soap for example).

Anther reason for this confusion is when I go to buy my fragrance oils for the soaps, I often find "type" fragrances sold by these fragrance oil companies. For example, "Very Hollywood by Michael Kors Type" fragrance. I also find a lot of "Bath and Body Works type" fragrances. These frargancs mimic the popular fragrances in the perfumes and body sprays, they even use the names in the description or labels of the fragrances. People make soaps with these fragrances, then name their soaps "Very Hollywood by Michael Kors Type Soap" because that's the name that was on the bottle of the fragrance (and because the name will help the soap sell). I don't know if the fragrance company has permission to use the Michael Kors or Bath and Body Works name, but the soaper who used the fragrance certainly doesn't. Is this also not allowed? Where is the line drawn on something like this?


I'm definitely not limiting myself to Disney, I just used them as an example because they are universally well known and it helped make my question very clear. If I had said I wanted to make soap with Homestuck colors or Viking Freight colors, that would have been a lot less clear (especially since Viking Freight merged with FedEx and no longer exists). I didn't want to confuse anyone or have to re-explain myself.

Also, for events like baby showers, adults often have Disney-themed parties, and Micky Mouse is popular with both children and adults. I've even seen Disney princess themed weddings. Disney is huge and appeals to the "inner child" of many adults, so it's not uncommon for adults to want it.

No one was trying to rain on your parade, or destroy your dreams of entrepreneurship.

Don't take any information received via the internet as gospel.

Use what you might read all across the webz to visit a copyright attorney, even a general business attorney near you.

You can spend about $500 to $1,000 to avoid a disruptive, catastrophic lawsuit.

Protect yourself and proceed cautiously is what most people here are trying to tell you.

How, or IF you do that, is entirely up to you.

 

[army judge]

That's certainly true (you can even drop "generally" from the statement).

I avoid (for the most part) of being too precise with my answers.

I used to do that, but changed over time.

My goal today is to encourage posters with more complicated issues to seek REAL legal advice from an attorney (or two) in or near the county in which they reside.

 

[zddoodah]

I don't have a selfish motive and I'm not trying to steal the benefits of other's hard work. The reality of making anything handmade is that customers know you can do custom orders, and they always ask for things that are trademarked.

As I wrote previously: There's a big difference between making something with colors that match those of Mickey Mouse, Frozen, etc. and marketing your product by using the intellectual property rights of others for your own benefit. A customer may come to you and say, "hey, I'd like you to make me a thousand widgets with colors that mimic those of Finding Nemo, and it would be perfectly legal for you to do so. On the other hand, if you make those same widgets and sell them and use "Nemo inspired" in your advertising, then you are violating the trademark rights of others.

As you've described it, it's not the making of the product that causes a problem, it's the use of the names/trademarks in advertising.

I have a friend who makes custom sugar cookies, and her biggest sellers are always the trademarked characters. She doesn't advertise that she makes them, customers just message her and ask her to. She said almost every cookie she makes is a trademarked character.

Then your friend is infringing trademarks and copyrights, but her situation is different than your situation as you described it.

I also see others on Etsy and other websites blatantly copying (They paint a picture of Nemo and sell it with the label "Nemo painting") and those shops are never taken down and their product is always up for sale, so this created a lot of confusion for me.

Companies like Disney vigorously enforce their rights (I know because I used to work at a firm that represented Disney entities), but they can't catch every little thing. Is it possible to get away with infringement? Sure, but it's not a good idea.

Anther reason for this confusion is when I go to buy my fragrance oils for the soaps, I often find "type" fragrances sold by these fragrance oil companies. . . . I don't know if the fragrance company has permission to use the Michael Kors or Bath and Body Works name, but the soaper who used the fragrance certainly doesn't. Is this also not allowed? Where is the line drawn on something like this?

Using those names without permission is illegal.

 

[army judge]

Companies like Disney vigorously enforce their rights (I know because I used to work at a firm that represented Disney entities), but they can't catch every little thing. Is it possible to get away with infringement? Sure, but it's not a good idea.

I agree with you 100%.

I did work for Kimberly-Clark and Coca-Cola.

Kimberly-Clark aggressively enforces their copyrights and trademarks, as in the use of the word "Kleenex", rather than tissue.

Coca-Cola and Pepsi do the same regarding their products, especially Coca-Cola.

Fortune 500 firms aggressively protect their turf.

 

[ElleMD]

If it is pale blue, sparkly, and has a snowflake, or has a bucktooth snowman with a cowlick, anyone not hiding under a rock for the past 2 years (the lucky devils) is going to think of Frozen. Now if you were going off the fairy tale it was "based on", none of those things would apply. So there is the generic stories and myths we all heard as kids, and then the Disney version. Sticking to the former is fine.

If a customer asks for a specific theme, tell them that while you can't infringe on a trademark, you can make soap that matches their general color scheme. As long as you aren't marketing it as "Elsa's Soap" or using the title "Frozen", you are good.

Basically anytime you are using someone else's idea or product to help market your own, you risk running afoul of infringement. None of us can tell you for certain where any particular company or court will draw that line, but the less you invoke something under trademark the better.

 

[army judge]

If it is pale blue, sparkly, and has a snowflake, or has a bucktooth snowman with a cowlick, anyone not hiding under a rock for the past 2 years (the lucky devils) is going to think of Frozen.

I don't hide under rocks, LOL.

I no longer care to watch any movies.

From what i read, I guess that amounts to a lot of us.

I don't do it to make a point, other than I can't see paying twenty bucks (even ten bucks) to sit a some filthy auditorium with dozens of of people who might be carrying all manner of diseases, or are simply uncouth and loud.

Yeah, I know, I'm nuts.
My wife gently tells me everyday, as well as I'm cheap. LOL

 

[Erilyn]

I don't hide under rocks, LOL.

I no longer care to watch any movies.

From what i read, I guess that amounts to a lot of us.

I don't do it to make a point, other than I can't see paying twenty bucks (even ten bucks) to sit a some filthy auditorium with dozens of of people who might be carrying all manner of diseases, or are simply uncouth and loud.

Yeah, I know, I'm nuts.
My wife gently tells me everyday, as well as I'm cheap. LOL

I totally get this haha. I don't remember the last movie I saw in a theater

 

[adjusterjack]

I don't have a selfish motive and I'm not trying to steal the benefits of other's hard work.

BS. That's exactly what you are doing.

You want to make money by using trademarked names and characters.

If you can't sell your stuff without infringing, then find another line of work. It's that simple.

 

[Erilyn]

BS. That's exactly what you are doing.

You want to make money by using trademarked names and characters.

If you can't sell your stuff without infringing, then find another line of work. It's that simple.

Not at all, customers ask for this stuff without me advertising it. I don't want to make it for them if it's wrong, but I also don't want to just turn them away either. I'm looking for a solution that will make the customers happy without violating trademarks. I think the solution is to offer them a soap that matches their color scheme. If you read my entire post you'll see what my dilemma was. The soap sells fine on it's own the way it is, but I do get requests from time to time and wanted to know how to go about handling them. If I wanted to violate trademarks I would just do it without posting here like everyone else on Etsy/Ebay/etc

 

[army judge]

If I wanted to violate trademarks I would just do it without posting here like everyone else on Etsy/Ebay/etc

So true, those sites are filled with cheaters, crooks, thieves, scammers, and fraud artists.

 

[zddoodah]

Not at all, customers ask for this stuff without me advertising it.

One more time...there is no legal issue with making soap using Nemo-inspired color schemes upon a customer's request, as long as you're not advertising it.