# Owner wants my desserts! But I have question



## cheftracy40 (Mar 30, 2008)

I'm really excited right now because an owner of a new restaurant here wants to use my desserts in his establishment!! He wants my Sweet Potato Pie, Blueberry Pie, Bread Pudding and Red Velvet cake. Isn't there some type of contract to prepare for him so my desserts will be "protected"? Better yet, does anyone have a sample contract??

Thanks in advance!


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## jbd (Mar 17, 2008)

My first thought was, "What are you protecting?" The products you listed are well known with many variations that are already published. As I see it, you will need to identify the specifics that make each recipe your creation as opposed to an already existing recipe. As an example, when I owned my bakery, I used a cream cheese icing on most of my cakes. In the beginning the recipe called for vanilla extract. At some point I was reading a cookbook from the UK and ran across a comment that lime juice added to dishes made with cream cheese would enhance the flavor of the cream cheese, so I replaced the vanilla extract with lime juice. IMO it was an improvement and my customers liked it as well. Did that make it my recipe? I didn't feel like it was my recipe. It was just a recipe I used with an adaption based on information from another person. Based on that information I also started using the lime juice in cheese cakes instead of vanilla as called for in the original recipe I had. I didn't feel that was my recipe either.

Are your recipes truly your unique creation or could the restauranteur find the same or very similar elsewhwere? Consider not only the ingredients but the technique or method of making the products as well.

If your products are locally renowned, even if they may not be truly your unique creation, I would agree that you need a contract to protect your financial and business image.

Best regards

jbd


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## tri2cook (Nov 25, 2007)

What are you wanting to protect? You're supplying the desserts right? Not the recipes? If they were interested in doing desserts in house they wouldn't go to all the trouble of bringing your desserts in to steal them, they'd just find recipes they like or develop their own. Are you wanting advertising? Some sort of contract stating that they give you credit for making the desserts? Obviously, they wouldn't be obligated to agree to that (though they might if your desserts are very well known locally because it could benefit them as well in that case). I'm not sure exactly what you're trying to accomplish.


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## jibbster (Jan 14, 2007)

ChefTracy40, 

Please let me know how this works out for you..you can PM me if you want. I am in a similar situation where I have been catering for about 9 years and now a couple of local restaurants are wanting me to do desserts for them. I'm not worried about protecting my recipies, but I would love to hear the logisitcs and what experiences you are having!

Mike


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## cheftracy40 (Mar 30, 2008)

Hello Mike!
I think previous posters misunderstood what I was trying to ask-or I phrased it wrong! I was wondering about how to protect the name of my business, not the recipes. I have recently found my answer: Trademark it. 
The owner of this particular restaurant wanted to "test" my desserts, so I took in samples along with whole pies and he absolutely loved them and starting talking about me doing them starting next week.. So now, I'm searching online for sample contracts. Is this your situation also?


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## cheftracy40 (Mar 30, 2008)

Thank you! That's what I was looking for!!


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## cookie mama (Mar 6, 2005)

does this apply to writing a recipe book? I have been sitting on this idea for years. I have made so many variations of things that so many people I know love and begged for the recipe. I know of someone who after years still wants a recipe. I later found out she bakes for her brother's restaurant! That told me it was time I capitalized on my creations and continue to not give out my recipes.


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## jbd (Mar 17, 2008)

cheftracy40,
I did misunderstand what you were asking in the original post. I would think that maybe your best bet would be a consultation with a corporate lawyer, as opposed to a trial lawyer. I would think such a person could at least give you some ideas of what to have in a contract or even what to avoid having in a contract. Such a consultation may not cost more than $100 to $150. You may even have the lawyer write up the contract which would cost more but it would probably be better than some future problem based on a misunderstanding between you and the other person. Even with just the consultation you come away with enough information to sit down a write out a contract with the restauranteur without involving the lawyer any further. Regardless of how you come up with the contract it should be notarized.

I hope it all works out well!!


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## jbd (Mar 17, 2008)

Very good point by chubyalaskagriz above


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## panini (Jul 28, 2001)

forget property, no laws stick.
I'd be thinking about logistics! You're in a rush to identify this product as yoiur own, but what if you walk in one day and you get a piece of red velvet that the waiters cut with a steak knife and hasen't been wrapped properly for days. Want your name on that! What are you doing with stales. Who serving the desserts. Can't count the times I've tried this, even on a tri state level.
HANDELING!!!!!
We went on the internet last week and found numerous cakes of ours, on many sites including a couple of large ones.what can you do. paninicakes.com
My only account nows takes all my daily stales (which are still fine) and he runs them as chef's choice desserts of the next day.
pan


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## ruben (Apr 20, 2006)

let me tell you a little story it goes like this.
i started doing the same deal as you are, never mind contract what i did was i started with three diferent cakes once they became used to them i introduced three diferent cakes and along i went until i supply 24 diferent cakes innovation is the name of the game they might try and copy two or three but never ever 24 diferent cakes so go on and start with three and move your way up 
salud


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## pattycake2007 (Aug 12, 2007)

I don't think a contract is that important or necessary. Basically, he will continue buying your deserts until he doesn't want them anymore. What IS vitally important is that you buy business insurance so that you are protected if, God forbid, someone is hurt by eating one of your pies. 

Chances are that will never happen, but a million dollars worth of insurance is relatively inexpensive - usually around $400 a year. And, most restaurants require that you have such insurance before they will buy from you.

Additionally, I highly recommend that you incorporate so that, if you are ever sued, your personal assets can not be touched. Don't do anything fancy - a simple LLC is all that is necessary. This really does not cost much to have drawn up - like $200. I am concerned that you think that the trademarking is protecting you. It's only protecting you from someone stealing the name - it does not protect you from anything else.


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## cakesbysk (Sep 29, 2007)

Hello, I supply a restraunt and caterier with cakes, and or mini pastries, for there special occasions, I give them a discount, so to speak and they have passed my name on to other clients, and customers who asks where did you get thoes pastries, it has brought me more business than if I tried to restrick the restraunt or try and have a contract with them. If one of there customers ask where the got them, they just give them my card. In turn if someone is looking for a caterier then I pass there name and card on. It works great for me. Jane. [email protected]


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## boar_d_laze (Feb 13, 2008)

There are a number of issues running wild in this thread, maybe I can shed a little light. What I'm going to say applies to most, but not all jurisdictions.

1. Copyrighting, Trademarking, and Name Protection: As I understand it you're interested in protecting your company's name from others copying it or customers using it without permission. The simplest way to do this is to do a name search at your County Recorder and file a DBA (aka "doing business as," aka "Fictitious Name Statement." When your DBA is granted you will also (probably) receive a "Tax ID," which will allow you to purchase items from some sellers without paying sales tax. A good place to start your research as to where to go, how to do it, etc., is at your State's Secretary of State's website. This should be enough to protect your trade name. If you have a logo or some other trademark you're worried about someone stealing, the proposition becomes a little more complicated. Don't waste a lot of dough protecting something that didn't cost you a lot of money to begin with or isn't making you a lot of money.

It's not easy to control a simple name like "Tracy's." People can use their own names provided they're not named Mickey Mouse. Nobody beats Disney. Which raises another issue. Unfortunately intellectual property rights are sometimes no better than the amount of money you have to protect them. It's a matter of business efficiency, something the court's favor.

2. Incorporating, LLC, LLP, and other business forms: Good idea if you can afford it and you have assets you want to protect. There are discount incorporatos and self-help websites for incoproating in most states. You usually do not need an attorney to set up a "closely held corporation" or other similar business form. If you have significant assets, I suggest you do consult an attorney so as to find the best form for you and to make sure you do not pick up tax liabilities unnecessarily.

A corporate or similar business form allows you to do some retirement planning, accelerate depreciation, take a "tax loss," write off part of your resides, and move some money around creatively -- at least for the first couple of years. You have to show a profit three years out of five to keep the fancy stuff going.

At the level you're thinking about you'll probably get more and better information from your accountant than you'll get from using an attorney. If you don't have an accountant we're probably putting the cart before the horse. *Making money is always the first step*.

3. Insurance: If you are going to remain a sole proprietor or other simple business form, your homeowner's insurance probably covers you. Consult your agent. If you are not a homeowner, you need to consider whether you have assets to protect. If you do not, it's more likely that the retailer will be sued instead of you. If you're in some sort of intermediate position, consult an insurance agent. You want to make sure your coverage extends beyond simple liability and includes a "duty to defend" on the part of the insurance company. This means that if you do get dragged into court, they've got to provide an attorney -- they can't just write a check for the limit of the policy and leave you in the lurch.

If you plan on hiring employees you absolutely need employers' insurance and whatever passes for workers' compensation insurance in your jurisdiction. Do not think, even for a second, of going bareback.

If you're a corporation or other anonymous business form you need sufficient tort coverage to cover "foreseeable eventualities." Otherwise, you waste your time and money starting the whole thing. If you're sued and don't have adequate insurance the Court will "pierce the corporate veil," and the Plaintiff will be permitted to go after your personal assets.

4. Contract with restaurants and other retailers: I'm not sure what rights you want to protect, or what obligations on the part of your customers you want to enforce. Contracts are all about mutuality. It's unlikely a retailer will consider entering a written contract with you unless the relationship matures to the point where they would suffer damage if you decided to stop providing for them. At first blush, your positions seem too unequal and rights and obligations so nebulous to require anything formal. For the time being, your recourse is probably "Small Claims Court" if anything goes wrong -- if, for instance, they stiff you on a $1,000 worth of baked goods. When you're doing enough business to get into a court of general jurisdiction, someone wants your services exclusively, or something equally earth shattering, then it's time to start thinking about contracts. 12 cakes, 12 pies, 48 loaves and $400 a week? No.

Hope this helps,
BDL


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