"Trademarks, Copyrights & Patents"
by Doneen St.John of The Candle Cauldron, 1999

I have written this article for the benefit of candlemakers who own small shops
or home based candlemaking businesses, in the hopes that it may help shed some light
and clarify a confusing issue that troubles many candlemakers today.

     In recent years, candles have seen a major surge in popularity, as has the craft of candlemaking.  Be it trend or fad, candles are what's happening, and they're selling like hotcakes!  This includes sales in the large mass manufactured candle market, and in the smaller hand crafted candle markets.  No matter what the product is, there will always be a few large companies manufacturing in huge quantities, and then there will be the small local shops and home based crafters who make their products on a smaller scale, custom and hand made.

   Although these candles are much different than the mass produced variety on the market, there are so many smaller candlemakers getting into the business that the market is saturated and has become very competitive.   Retail candle shops, gift shops, flower shops, mail order catalogs and others now have many more choices when it comes to what brands of candles they can sell.  The smaller candlemakers are rising up and taking their piece of the pie, landing private label and wholesale accounts, selling their product lines to local shops, in craft shows, malls and flea markets, and even doing home parties and fundraisers.  Many customers are opting to purchase candles from the smaller hand crafted market due to the quality, uniqueness and the ability to customize their orders.  These crafters take great pride in their products and it shows.
The big companies have taken notice....

     One of the biggest issues troubling candlemakers recently is the practice of trademarking product names.  While trademarks are nothing new, it is being done more and more often by the large candle companies such as Yankee, Lumi Lite, Village Candle, etc.  Several large companies like these have been having their legal staffs issue 'cease and desist' letters to smaller candlemakers, threatening to take legal action if a product name, name of a fragrance, or brand name they have a TM on is being used without their permission.  Many people are confused as to the definitions of and differences between a trademark, copyright or patent.
Let's take a moment to clarify....

     A trademark is a way of marking or identifying your unique product, and differentiating between it and one from another company.  It protects companies who have created an idea and manufacture a product or provide a specific service, from being copied or imitated too closely.  You can trademark your company brand name, such as "Coca Cola" is a brand name and cannot be used by any other company.  You could call yours "Cool Cola" or "Chilly Cola", but you cannot call it "Coca Cola".  You can trademark an original name of a specific product that you created, such as the "Chia Pet".  Even though the "Chia Pet" may be made by "ABC" company, the product itself has it's own unique name that is trademarked and cannot be duplicated.  Call yours "Grow-a-Pet" or "Water-me-Willy", but you can't call it a "Chia Pet"!  Same goes for company slogans.  Here is an example:  "Surge" cola bottles say on them "fully loaded citrus soda" tm.  That phrase is their unique slogan for that specific product of theirs and cannot be used by any other brand of citrus soda.  They could use a phrase such as "power packed" or "the soda with zing" instead.  Getting the idea now?

     Well the same goes for names of fragrances, whether they are a perfume, an air freshener or a candle scent.  When a company thinks up an original fragrance name for their product and trademarks it, that means that no other candle company is allowed to make a candle and call it that fragrance name (for example Yankee's "MidSummer's Night").   It is not the actual SCENT itself that is protected in this case, it is the NAME of the scent.  To protect the actual fragrance would mean getting a chemical patent.  This type of trademarking is a fair practice.  Anyone or any company who thinks up an original name for their product should have the right to protect it from being copied by their competitors.

     The problem is that the large companies are being granted trademarks on common scent names, such as "Strawberries-n-Cream" and "Sugar Cookie" which are very common food scents, "Christmas Eve" which is the name of a holiday, and "Home Sweet Home" which is a commonly used phrase.  They are also trademarking common names of candle types, such as "Cake Candle" and "Tart".  Cake Candles, made by frosting a pillar candle with whipped wax, have been being made for years, and have been referred to as "Cake Candles" by crafters and even in craft books since the 1970's.  The word Tart is a common shape of a pastry with scalloped edges and has become the common term for the wax potpourri "tarts" that are made to be melted in potpourri burners to scent a room.  It is the common names like these that home and small business candle crafters object to being trademarked.   Large companies are taking advantage of the fact that they can afford to trademark as many names as they want (which costs $245 just to register each one) whereas most of the smaller candle companies can't.  It seems they are attempting to use this as a tool to corner the market and keep these smaller, but ever increasing, competitors from sharing in the sales.

   As I understand it, even when a small candle company can purchase a fragrance oil for use in candlemaking from one of the many large fragrance manufacturers, that may be named "Sugar Cookie" etc, the candlemaker cannot technically use that scent name on their candle if another candlemaking company has a it trademarked.  The key here is that the trademark is on the name as it pertains to candles, not as it pertains to the oil that scented it.  So a supplier can sell an you an OIL called "Sugar Cookie", but that doesn't mean you can call your CANDLE "Sugar Cookie".   The manufacturer, seller or creator of the fragrance name can also trademark the name for use on the fragrance oil itself, so that other suppliers cannot copy it.

     My beef is this:  I believe it is unfair to grant someone a trademark on such common names, as it leaves others no alternatives.  Think about it... if it smells like commonly known foods such as Strawberries & Cream, then we should be able to call it that.  What else would you call it to let customers know what scent they are buying?  So far this common name trademarking has only been being granted on name combinations, not single word names like just "strawberry".  But if a fragrance oil is formulated to smell just like Cinnamon Toast, then for goodness sake what else should we call it??  I myself have no problem with a company laying claim to and trademarking a unique type of name that was an original thought of their own.  I share alot of ideas with fellow candlemakers through my website, but I also have several original ideas of my own that I wouldn't appreciate my competitors copying.  And believe me, I know how it feels to be copied or imitated!  I know that sometimes it doesn't seem fair that so many ideas, names, etc. are protected by trademarks and not free to use, but we must put ourselves in the other shoes.... you may have some original ideas that you wouldn't want everyone and their Gramma copying too!

   We've all heard the phrase "Imitation is the highest form of flattery", but when you work hard and think up something unique and original, and you're so proud of your cool new creation, it can really "burn" you when someone tries to steal it!   This applies whether it's a scent name, a graphic or a logo, or even website designs.  If we all had the same type of products with all the same exact names or the same designs then we'd all be alike... yuck!   There are only so many colors, scents and types of candles to be made, so of course many companies will have very similar products and several of the same basic names, but as long as we all have at least a few of our own originals, we can stand apart in the crowd.  So I personally do not object to a company like Yankee trademarking a name like "MidSummer's Night" or "Roses of Cliffwalk".  If they thought of it first, and since it's not a food name or a common phrase or a holiday, well then they have every right to it!  Trademark your heart out!  I just think it's taking it too far to unfairly claim originality on something basic that can only really have one name to describe it correctly.

     These 'cease and desist' letters also state that not only are we not allowed to use the exact name, but "any colorful variation thereof...", meaning changing the name a little or using something similar enough to get the comparison across.  For example:  Someone could think, well if I can't use the name "Tart" then I'll call them "Tartlets".  Well according to them, that is still a trademark infringement and would confuse the public.  It seems they assume that the general public isn't capable of looking at a Yankee Candle Co. brand "Tart", and a similar product made by XYZ Candle Co. called a "Tartlet", and telling the difference.  I choose to give people a little more credit and assume that they can  (but then again, I'd assume people would know to trim their wicks....lol).  It is not the small candlemakers' aim to have their handcrafted products mistaken for the mass produced factory made products.  In fact they pride themselves on being different, hand poured, hand crafted, with pride, care and love.  This is not meant to knock the big companies in any way, just to point out the differences.  Heck, many 'small companies' would like to be 'big companies' someday too.  And don't forget... many of those 'big companies' started out in basements or garages too!

     I have a good amount of personal experience with this issue, and can understand both sides.  I work full time for a company, handling their customer service, marketing and website design.  Part of my job includes creating and designing products such as fragrances, and creating the names, slogans, logos, etc.  I enjoy my job immensly and take a great deal of pride in my work.  I can't even begin to describe the sense of accomplishment, pride and happiness I feel when I create something really neat and original, and receive compliments on my creations!   But... I also can't describe how it makes me feel to see my hard work being 'knocked off' by competitors.  My work, both professional and personal, has been copied and immitated more times than I care to count, and it can be frustrating and downright infuriating to see someone else trying to take credit for work that I did!  In my opinion, it just shows a total lack of respect and manners, and a complete lack of decent business ethics.  To put it bluntly, copy cattin just ain't cool!  (If you can't tell by now, yes this is a major pet peeve of mine!)  I think it's incredibly lame that people just take the easy road and copy ideas off their competitors instead of spending their time developing their own creative ideas.  Why anyone would want to present their company in that kind of light is beyond me.
But that's just my opinion :)

     The moral of my story is this:  We may not always like it, but there's alot of competition out there, and having an exclusive on a unique product is just part of smart business.  It's always best to do your research.  Be creative, be honest, enjoy what you do, take pride in your work!  If you are sincere and you believe in yourself and your products, they will sell!  And you'll feel so much better knowing that it was YOUR creation or idea that sold, not someone else's!
 


I hope this has helped shed some light on this issue, and maybe even sparked a few imaginations!
Best wishes in your crafts & businesses and happy candlemaking!

 

*Yankee Candle Co., "MidSummer's Night", "Roses of Cliffwalk" , "Tart", "Christmas Eve" & "Cinnamon Toast" are registered trademarks owned by the Yankee Candle Co.  "Sugar Cookie" is a registered trademark of Village Candle.  "Cake Candle" is a registered trademark of Lumi-Lite.  "Strawberries & Cream" is a registered trademark of Glade.


Here are some basic definitions (in my own words) to clarify these 3 terms,
and links to sites containing more technical information.

TRADEMARK = Can be put on an original brand name, product name, slogan, logo, or a combination thereof, that specifically identifies and sets apart that particular product from any other company's product of it's nature.

COPYRIGHT = Can be put on an original work of art, such as a painting, drawing, logo, a poem, song, play, book or short story, an article written for any publication such as a newspaper or magazine, a web page, etc.

PATENT = Can be put on an original invention, such as a new product you developed, or a new design for or an addition to an existing product, or even formulas and chemical compositions.
 
 

US Patent & Trademark Office Website
SPO Patent Services
A Basic Guide to Patents, Trademarks & Copyrights

 


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D. St.John  of The Candle Cauldron
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