I recently browsed through a myriad of recipes from random blogs — there are a lot of recipes out there that I absolutely love, which incorporate my favorite cookies and candy: Oreos®, Reese’s Peanut Butter Cups®, Rolos®, etc. What jumped out at me was the distinct lack of trademark symbols after the trademarked ingredient was listed. Do food bloggers need to attach a symbol when they use a trademarked name?
For ordinary writers, the answer might simply be “no.” If I take a piece of paper and doodle Oreo® 20 times, I do not need to put in the registration mark, though I can, if I want to. The point of trademark protection is for “use in commerce” to be able to tell goods apart from each other.
There are two issues that piqued my interest with food blogs: They are relatively similar to cookbooks, the main difference being that bloggers do not necessarily make money off of their blogs. According to common law copyright standards, however, “commercial benefit” does not automatically mean financial benefit — for bloggers, it might be the prestige of being re-blogged or being asked to write a guest post. Both are just examples of things that can be commercial benefits without money changing hands that come about as a result of the blogged recipes.
Unfortunately, there is also a dilution issue. Presumably bloggers are not attempting to confuse people. However, continued use of a brand name can quickly spiral from beneficial to excessive. If you use Oreos®, when you really mean any sandwich cookie (and you in fact, indicate as such in the recipe), how much time needs to pass until the two become synonymous? Where is the timeline documenting when Kleenex® went from being a brand to a colloquial term meaning “tissue”?
So yes, writing in my diary that I ate 10 Oreos® would not require a mark. But when writing that a recipe needs 10 Oreos®, the registration mark should be necessary. Typing a simple mark furthers the aims of trademark law without infringing anyone else’s rights, making it a win-win situation.