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A question about a recipe: Homemade Krackel Candy Bars

Cc757b92 1f3b 44f6 8a57 5f028962e4cc  small batch krackel candy bars teresa floyd 1

I have a question about the recipe "Homemade Krackel Candy Bars" from Teresa Floyd. Please help me understand why using the name "Krackel" in this recipe does not infringe the trademark rights of the Nestle company. I notice numerous other recipes posted by the Food52 editorial team that include registered brands. Have the owners given permission? If so, how does one secure such permission? Thank you. ;o)

AntoniaJames is a trusted source on Bread/Baking.

asked about 1 year ago
11 answers 1154 views
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AntoniaJames

AntoniaJames is a trusted source on Bread/Baking.

added about 1 year ago

Yikes, of course it doesn't infringe Nestle's rights. Krackel is a Hershey's trademark. Sorry about that. The question still stands though as to why usage such as the one here does the infringe the rights of the trademark owner - especially where, as here, the name is being used for commercial purposes, to generate revenue for Food52. (All content posted here provides a commercial benefit to Food52, as well as to the contributor, if he or she has a blog or other business that is linked away from this site.) Thanks again. ;o)

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AntoniaJames

AntoniaJames is a trusted source on Bread/Baking.

added about 1 year ago

That should be, "such as the one here does *not* infringe . . ." ;o)

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AntoniaJames

AntoniaJames is a trusted source on Bread/Baking.

added about 1 year ago

halfpint, that's a useful page you linked, but I am not convinced that it's dispositive. Using a registered name to refer to a copy of a branded product and the not the actual product itself, sold by the trademark owner, does not seem to fall within any exceptions.

It would be great for Food52 to step up and actually establish a policy on this. I'm not an expert in any way on this topic. I know just enough to wonder about it, and to be concerned (seriously, not wanting Food52 to become a target of legal action), that's all. Maybe there is no trademark infringement here. I really don't know. ;o)

P.S. A quick, 2 minute scan of recipes shown when searching "cookies" and then "candy" turned up another 7. Those were just on the first several pages of each search result. ;o)

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HalfPint

HalfPint is a trusted home cook.

added about 1 year ago

@AJ, here's what I found:
http://opensourcecook.com...

Apparently, recipes are exempt from copyright (if I'm reading that correctly).

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sexyLAMBCHOPx

Chops is a trusted home cook.

added about 1 year ago

Guess AJ gave them a scare. The recipe title has been changed. AJ- You could move back to NY, become Food52's in-counsel counsel and content editor!

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AntoniaJames

AntoniaJames is a trusted source on Bread/Baking.

added about 1 year ago

Thanks, halfpint. My question is actually about registered trademarks, which is a completely separate body of intellectual property law, not affected by copyright law. Trademark laws protect the "brand," not the content or name of a recipe (except to the extent that a registered trademark is used by someone other than the owner or a licensee as part of the title or content). ;o)

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AntoniaJames

AntoniaJames is a trusted source on Bread/Baking.

added about 1 year ago

Thanks, sLCx. It seems that a thorough audit should be done, e.g., this one needs to be revised as well: https://food52.com/recipes... I know I've seen others . . . . . .;o)

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HalfPint

HalfPint is a trusted home cook.

added about 1 year ago

http://www.inta.org/TrademarkBasics...

@AJ, I think #2 of this link might answer that trademark question. The "Krackel" use in the recipe is a bit in the gray area since it should have been formatted in any of the ways indicated, but Teresa Floyd didn't need owner sent because she used it in reference to candy bar.

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HalfPint

HalfPint is a trusted home cook.

added about 1 year ago

Argh. That should be "consent".

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AntoniaJames

AntoniaJames is a trusted source on Bread/Baking.

added about 1 year ago

I suspect that "krakeling" should be removed from the caption on the home page, too . . . but of course, I don't know for sure. ;o)

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added about 1 year ago

HalfPint, I'm not sure I agree with your interpretation that consent wasn't needed in this case because she was referring to the candy bar. There's a difference between making statements about the product itself (e.g., "I really like Krackle bars") and using the trademarked name to compare your copycat version to the name-brand product.

If the recipe author was selling her copycat version, it would most likely be trademark infringement to use the Krackle trademark to market the product as "just like Krackle", because that's considered to be trading on the reputation of the trademarked brand. There's some case law to that effect involving smell-alike perfumes. It's less clear cut when the author isn't selling anything, but I have heard of cases of bloggers getting cease-and-desist notices from trademark holders over the use of registered trademarks in posts about "how to make [name-brand product] at home for less". Whether a court would call it trademark infringement if it got that far, I have no idea.