Thursday, May 13, 2010

Disney piñatas?

Dear Rich: I am starting a home based business selling piñatas and party supplies. Although the piñatas that I had made are more from generic items, animals, etc. I was wondering if I can use images like the Disney's Princess on them without getting in trademark troubles. The Cricut company sells a cartridge called "Happily Ever After" with Disney images. May I use some of the images that I cut from it on my piñatas? Your use likely violates the law and the Cricut license agreement. And by the way, Disney licenses its own line of piñatas (if you can really call those things piñatas -- they look more like plastic bags, don't they?)
The Cricut license. As you already know (and the Dear Rich Staff did not), Cricut (pronounced "Cricket" in case you're reading this blog post aloud to a fellow insomniac) provides a system for making die cuts of popular and iconographic imagery. Cricut imposes a license agreement on users of its cartridges, and that policy, known as the Provo Craft Angel Policy, apparently seeks to limit what you do with your die cuts--for example you're limited to using the die cuts on 200 crafts products a year. The policy as to third-party trademarks may differ and is usually set forth somewhere in the package documentation, but the policy regarding Disney seems to be clear: "Disney characters and images MAY NOT be reproduced and sold."
Is the policy binding? At least one disgruntled user has investigated the legal ramifications. Although, we can't say we agree with all of the legal reasoning, the uproar among users has apparently caused Cricut to revise its non-Disney Angel policy, at least as to use of the die cuts on cakes, scrapbooks, and some other items. Whether the user license is binding depends on a bunch of legal factors that we don't want to bore you with. The important thing is that Cricut apparently thinks it's binding, and more importantly, even if it's not binding, Disney can still go after anyone who uses their marks without permission and confuses the public into thinking it's a Disney product.
If a tree falls... There's one other thing to consider which is what we call the tree-falls-in-the-forest factor -- is whether the folks at Disney's LegalWorld will ever learn of your use. If they do and Walt's people send a letter, there's a chance that the matter will end with you simply halting the sale. On the other hand, things could also get very Goofy and Daffy!
This is going on too long. Good thing we don't have to pay for each word we use. Anyway, it's a tough call but we'd say yes, the use violates trademark law. On the other hand, if you keep a low profile, your use should not trigger any angry letters from Mickey.