Hyperlinks Under Attack...

[Cinisajoy]

And many people mistake copyright and trademark.
I could post a cheesecake recipe as long as I didn't use any brand names unless the brand name is the only one available.
Now if I used brand names, that would be violating trademark not copyright.
Note the cheesecake recipe in a Kraft cookbook, only has their brands.
Example Philadelphia Cream Cheese, Breakstone sour cream, vanilla extract, graham crackers.
Note 2 of those do not specify a brand.
Walmart recipes are the same way.
Oh and if you look up angel food cake in major cookbooks, it is basically the exact same recipe.

[HarryT]

Originally Posted by Cinisajoy

And many people mistake copyright and trademark.
I could post a cheesecake recipe as long as I didn't use any brand names unless the brand name is the only one available.
Now if I used brand names, that would be violating trademark not copyright.

No, there's absolutely nothing wrong with using brand names in a recipe. The only thing you couldn't do is to sell your own products and use someone else's trademarked name to market them. Eg, you could publish a recipe book in which you use Philadelphia cheese in a recipe, but you couldn't call your recipe book "The Philadelphia Cheese Cookbook", because that would be trademark violation.

[Cinisajoy]

Originally Posted by HarryT

No, there's absolutely nothing wrong with using brand names in a recipe. The only thing you couldn't do is to sell your own products and use someone else's trademarked name to market them. Eg, you could publish a recipe book in which you use Philadelphia cheese in a recipe, but you couldn't call your recipe book "The Philadelphia Cheese Cookbook", because that would be trademark violation.

Harry,
According to US trademark laws, you have to have permission to use the brand names in a cookbook. Yes, I looked this up.
Now yes, I could say in a book that I had a Philadelphia Cream Cheese Cheesecake with a Coca-Cola. (That is fair use.)
On the ingredients there are two reasons, one is lack of permission and two is customer service.
They don't want their products put in a bad light.
That depends on the book. I know you can't do 69 fun things to do with Jell-o in the bedroom. You better not even have Jell-O in the book.
Fair use with trademarks refers strictly to "you can have your character use a name brand product" and cookbooks are a different story.
That is because you are telling the reader to use a certain product.
Now it may be different in the UK.

[HarryT]

Originally Posted by Cinisajoy

Harry,
According to US trademark laws, you have to have permission to use the brand names in a cookbook. Yes, I looked this up.

Cinisajoy,

See:

http://www.avvo.com/legal-answers/wo...rk-223862.html

This is the opinion of an American "Intellectual Property Law Attorney":

Question:

We are publishing a cookbook that will feature many recipes using common consumer food products. It will be marketed online. Does using the Trademarked product name in the recipe or showing a picture of that product in the book constitute any type of Trademark or Copyright infringement?

Answer:

Not if you do it right. You can include trademarked products as an ingredient in recipes, and even show photos of the products. But you can only use photos that are yours (and not an infringement of someone's copyright in other photos) and you must identify the trademarked products as such (with a disclaimer as to who holds the TM right). You can't use the products to market the cookbook.

[fjtorres]

Originally Posted by HarryT

True, if the court rules that the usage is "fair use", you haven't violated their rights, but that judgement can only occur as the result of you making use of copyrighted material and then claiming "fair use" as a defence when legal action is taken against you as a result.

The key distinction is flexibility versus rigidity. Implicit rights versus explicit ones.

In the US CD ripping for personal use was generally seen as legal from the beginning and didn't need a law authorizing transcoding. When the RIAA sued Diamond, they lost.

In the UK they most likely would've won because there was no explicit right to transcode at the time.

In the American legal system citizens start out with rights and it is up to government to pass laws restricting them. It is one reason why philosophical libertarians (as opposed to the Libertarian Party, such as is) favor small government. Small government = less laws and regulations = more personal freedom. It all stems from the Declaration and the Constitution.

As usual, it all goes back to the greeks and the persians and Salamis.
The eternal debate of politics and civics.

[Cinisajoy]

Originally Posted by HarryT

Cinisajoy,

See:

http://www.avvo.com/legal-answers/wo...rk-223862.html

This is the opinion of an American "Intellectual Property Law Attorney":

Question:



Answer:

Note that is actually an opinion of a lawyer and not an actual court decision.
But anyway with 4 pages of disclaimers one might could get away with using brand names. Now I doubt a big company would go after someone because of the publicity.
What I do know about the media and products is they cannot be used for commercial use without explicit permission and usually compensation.
As a matter of fact, some self-published authors have found their books taken down because they photographed a trademark item and made it into a cover.
Trademarks are very guarded here in the US.
Oh and heaven help you if you use anything Disney.
You can use Cinderella but any description or picture had better not even remotely resemble the Disney version.

Oh and other problem with brand names is some of them are regional.

[HarryT]

Originally Posted by Cinisajoy

Note that is actually an opinion of a lawyer and not an actual court decision.

True, but it is the opinion of someone who is an expert in the field.

But anyway with 4 pages of disclaimers one might could get away with using brand names.

The post following the one I quoted is from a trademark infringement attorney, and he suggests that all that's required is to make sure that you add the "r in a circle" trademark symbol after each trademarked name, and then add a brief notice that "all trademarks are the property of their owners".

As a matter of fact, some self-published authors have found their books taken down because they photographed a trademark item and made it into a cover.

I'm not surprised. The cover would count as using the trademark to market the item.

Trademarks are very guarded here in the US.
Oh and heaven help you if you use anything Disney.

Yep, same in the UK. An idiotic woman near where I live got taken to court for being stupid enough to put images of Disney characters on the sign of her children's nursery.

In all honesty, though, I think you're pretty safe in using names of trademarked products in your recipes as long as you acknowledge the trademarks as advised.

[Cinisajoy]

Originally Posted by HarryT

True, but it is the opinion of someone who is an expert in the field.



The post following the one I quoted is from a trademark infringement attorney, and he suggests that all that's required is to make sure that you add the "r in a circle" trademark symbol after each trademarked name, and then add a brief notice that "all trademarks are the property of their owners".



I'm not surprised. The cover would count as using the trademark to market the item.



Yep, same in the UK. An idiotic woman near where I live got taken to court for being stupid enough to put images of Disney characters on the sign of her children's nursery.

In all honesty, though, I think you're pretty safe in using names of trademarked products in your recipes as long as you acknowledge the trademarks as advised.

Trademarks can also be marked with a small tm slightly above at the end of a word.

Oh also if one decides to write a book do not use "Choose your own adventure". Scholastic books gets mighty upset.

PS: To save time, trouble and paper I just used common names in my cookbook.

[HarryT]

"tm" and "r" mean different things. "r" is for a registered trademark and must be used when you're referring to someone else's registered trademark. "tm" is used when you've submitted an application to have a trademark granted, but the application hasn't yet been approved. It's important to know the difference between the two and to use them correctly.

[Cinisajoy]

Originally Posted by HarryT

"tm" and "r" mean different things. "r" is for a registered trademark and must be used when you're referring to someone else's registered trademark. "tm" is used when you've submitted an application to have a trademark granted, but the application hasn't yet been approved. It's important to know the difference between the two and to use them correctly.

I have seen both on well known very trademarked companies. Coca-Cola comes to mind.

Oh and I do appreciate your looking for me, but looking at the lawyers you linked, if they practice law anything like their commercials imply, I wouldn't trust them to defend me even with a video to prove I am innocent.
They are very cheap lawyers, all young and any lawyer here can claim to be an expert in any field.

So I think I will stay safe and not use trademarked items especially since if I put my cookbook up for sale (still waiting on the formatter), that to me would be commercial use.

[HarryT]

Fair enough .

[murg]

Originally Posted by HarryT

True, but it is the opinion of someone who is an expert in the field.

Amazingly, in the practice of law, everyone seems to have opposing opinions.

[JSWolf]

Originally Posted by murg

Amazingly, in the practice of law, everyone seems to have opposing opinions.

In a city with one lawyer, that lawyer starves. Add in a second lawyer and they both get rich.

The way I look at links is that if you do not want anyone to hyperlink you, don't put up your content on the web. Plain and simple.

[Rizla]

Originally Posted by pdurrant

It's all down to foolish lobbying from big media corporations (especially newspapers).

So it's the fault of the free market?

[pdurrant]

Originally Posted by Rizla

So it's the fault of the free market?

No, it's the fault of big media corporations (especially newspapers) and their foolish lobbying.

In Germany, they lobbied for a law entitling them to royalties from people who linked to their site using snippets of copyright material. So Google stopped linking to them, their web traffic slumped, and the big players agreed a free license to their content with Google.

So in Spain, the media companies looked what happened in Germany, and instead of deciding the whole thing was a bad idea, decided that the possibility of free licences was the problem, and lobbied for a similar law, but with a compulsory licensing free. Google still isn't linking to them, and their traffic has also slumped.

It's just a really, really, bad idea. I can't think it will get through the EU Commission, but if it does I'm certain that the EU Parliament won't go for it.