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Cupcakes Collide With Tuscaloosa Trademarks

From WBRC video

Overeager trademark enforcers at the University of Alabama cooked up another controversy last week, threatening a local baker with legal action for violating the Tuscaloosa institution’s trademark with Crimson Tide-themed cakes and cookies.

But after a few days of sharp protests from critics, Alabama decided it was getting, well, a little too hot in the kitchen. The university withdrew the threat.

The baker, Mary Cesar, owner of Mary’s Cakes & Pastries in Northport, Ala., is once again free to produce her trophy cakes, houndstooth cookies, and other University of Alabama-styled treats.

The controversy began on Tuesday, when Cesar received a letter from the Collegiate Licensing Company ordering her to stop selling the cakes and cookies, according to The Tuscaloosa News. The letter said that if Cesar wanted to continue to bake those sweets, she would need to pay for the right to use the Bama symbols.

The company represents the university in trademark issues, managing the licensing of Alabama-branded merchandise and enforcing rights, just as it does for nearly 200 other colleges and universities.

This sort of enforcement is probably typical, says Megan La Belle, an assistant professor of law at the Catholic University of America, because the burden of trademark protection always falls on the holder. “Trademark owners must ‘police’ their marks, or they risk losing protection,” she adds.

However, in going after a local hero, the company provoked a heated reaction. When Cesar told The Tuscaloosa News that she would stop making UA pastries because she didn’t have the money to pay licensing fees, e-mails and phone calls poured into both the newspaper and the bakery. Outraged fans also defended her in social media and to reporters.

Stewart W. Lewis of Lebanon, Tenn., wrote to the paper saying, “The amounts of money here are peanuts—and she’s paying local/state taxes (I assume) while trying to scrape out a living in this economy. UA licensing should be ashamed, and someone should be reprimanded if not fired for lousy … judgment.”

The university responded quickly with an apology and distanced itself from the Collegiate Licensing Company’s letter. The university’s assistant vice president for university relations, Deborah M. Lane, said in a written statement that Alabama had a special protocol for local merchants that was not followed in this case.

“We have assured Ms. Cesar,” Lane added, “that we will work with her to resolve this issue quickly and amicably so that she can continue to produce pastries that bear the university’s marks.”

Daniel A. Moore’s painting “The Blowout.” Image © 2009 New Life Art Inc.

This wasn’t the first time the university was rebuffed recently over how it was enforcing its rights. In July a federal appeals court ruled in favor of an artist whom the university had accused of trademark violations for his paintings of Crimson Tide football scenes.

The artist, Daniel A. Moore, had argued that his images of the university’s uniforms and colors qualified as fair use, and that the university could not demand royalties or otherwise enforce its trademark on them.

The court agreed, declaring that “Moore’s paintings, prints, and calendars very clearly are embodiments of artistic expression, and are entitled to full First Amendment protection.”

In a letter to The Chronicle, Moore noted that the university’s actions not only were illegal but also cost it an estimated $2-million in legal fees and lost revenue.

As for Mary Cesar’s hand-decorated Bama cookies and meticulously constructed layer cakes, Lane’s carefully worded apology did not state whether Cesar would be required to pay any sort of fee to continue selling them. But if the Moore case is any guide, it might depend on whether the university considers them to be works of art.

We don’t know about anyone else, but in the right light, those frosting swirls look a little like brushstrokes to us.

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