Please help me understand why using the name "Krackel" in this recipe does not infringe the trademark rights of the Nestle company. I notice nume...

...rous 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
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Homemade Crackly Milk Chocolate Candy Bars
Recipe question for: Homemade Crackly Milk Chocolate Candy Bars

11 Comments

strawberrygirl
strawberrygirl October 31, 2015
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.
 
AntoniaJames
AntoniaJames October 20, 2015
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)
 
HalfPint
HalfPint October 20, 2015
@AJ, here's what I found:
http://opensourcecook.com/recipes-copyright-law

Apparently, recipes are exempt from copyright (if I'm reading that correctly).
 
sexyLAMBCHOPx
sexyLAMBCHOPx October 20, 2015
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!
 
AntoniaJames
AntoniaJames October 20, 2015
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)
 
AntoniaJames
AntoniaJames October 20, 2015
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/search?q=Milano I know I've seen others . . . . . .;o)
 
HalfPint
HalfPint October 20, 2015
http://www.inta.org/TrademarkBasics/FactSheets/Pages/TrademarkUseFactSheet.aspx

@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.
 
HalfPint
HalfPint October 20, 2015
Argh. That should be "consent".
 
AntoniaJames
AntoniaJames October 20, 2015
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)
 
AntoniaJames
AntoniaJames October 20, 2015
That should be, "such as the one here does *not* infringe . . ." ;o)
 
AntoniaJames
AntoniaJames October 20, 2015
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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