Kraft Threatens Cooking Teacher With Trademark Claim For Teaching Students To Cook Beyond Kraft Mac & Cheese

from the morons-in-a-hurry dept

Mon, Apr 25th 2011 8:12am — Mike Masnick

I haven't had Kraft Mac & Cheese since I was a kid, and had no idea it went under different names in different countries. Apparently, up in Canada, it's called the Kraft Dinner or KD for short, where it's apparently even more iconic than in the US (where it's still pretty iconic). Either way, Kraft is upset. That's because a cooking instructor in Calgary, who had set up a free cooking class for students called "Kick the KD," is apparently violating its trademarks (via Rob Hyndman) -- and, yes, the company trademarked "KD." I don't know how different trademark law in Canada is compared to the US, but this seems like a pretty specious claim. First of all, there's no use in commerce. It's a free cooking-class put on by a non-profit. Second, there's no likelihood of confusion going on here, because it's not like anyone hearing about the Kick the KD is going to think it's associated with or sponsored by Kraft when the whole point is to get people to think about actually cooking their meals, rather than just breaking out a box of "KD" (I'm picking up the lingo). Now, of course, you can understand why it might upset Kraft that there's a class being taught to students about how to cook beyond the near instant simplicity of its Mac & Cheese, but that doesn't make it a trademark violation. Still, the class's instructor doesn't want to fight Kraft, so he's changing the name. Trademark bullies chalk up another win.

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Filed Under: canada, cooking, kd, mac & cheese, trademark
Companies: kraft

42 Comments

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Anonymous Coward, 25 Apr 2011 @ 8:33am

One question I have is how do they find these people? This has always confused me how a huge company finds some teacher or business owner and threatens them with TM violation or dilution. Do they hire people just to scour the internet and newspaper for these things?
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Hugues Lamy (profile), 25 Apr 2011 @ 8:42am

Scouring the Newspaper, TV & Internet
I used to work for that kind of company. I was watching the television all day long to get any mentioned on the customer we have. At this time, it was more for public relation management, but I can imagine that the services were beefed up with the recent years.

For 8 hours straight, I was listening, to 2 radio stations (one French and one English) as watch one or two TVs. During the night, two guys were coming it to do the same on the magazines and the newspaper. I'm glad I'm not doing this anymore.

For the internet, you have some alert services like Google to help you manage your PR on the internet.

Take care.
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Chronno S. Trigger (profile), 25 Apr 2011 @ 8:42am

Re:
Yes, they do. Articles have been written here about the MPAA/RIAA and other copyright trolls doing it. 4 Kids TV has at least one guy on staff that just spends all day flagging videos on Youtube.

I can't say that's what Kraft does, but we have seen others, so I wouldn't be surprised if they did.

Now I want macaroni and cheese, light on the milk and butter with tuna. I only have access to the real stuff right now, and while good, not what I want.
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Pitabred (profile), 25 Apr 2011 @ 8:51am

Retitling the class
I humbly suggest the instructor retitle it "Kick the Crap Dinner". It'd piss Kraft off to no end, and I can't imagine how it'd be legally actionable. Especially if it can ride in on a wave of publicity after this stunt.
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Anonymous Howard, Cowering, 25 Apr 2011 @ 8:56am

Re: #4 Retitling the class
Or "Kick the box - craft dinner!" gets the point across without mentioning anyone's mark...
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Dark Helmet (profile), 25 Apr 2011 @ 8:59am

Pro Tip
For those that, like me, still enjoy their Mac & Cheese: mix in a dusting of chili powder when you're mixing ingredients.

Cheap chili mac FTW!
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Greg G (profile), 25 Apr 2011 @ 8:59am

Ahh Kraft
I'm glad I've moved on to making my own Mac & Cheese, so much better when you can use 3, 4, or 5 cheeses and add something other than sliced hot dogs (don't get me wrong, those are still good in mac & cheese), like lobster.

Kraft is just pissed off that someone's trying to get kids to move beyond the nastiness that is powdered cheese sauce.

The instructor could just say KD stands for Kitchen Doldrums or something, and tell Kraft to just go away.
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Anonymous Coward, 25 Apr 2011 @ 9:08am

Re: Ahh Kraft
Well, you could do lobster in the Kraft stuff as well, but, yeah. Pearls before swine and all that.
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Dark Helmet (profile), 25 Apr 2011 @ 9:13am

Re: Re: Ahh Kraft
"Well, you could do lobster in the Kraft stuff as well, but, yeah. Pearls before swine and all that."

Nah, that'd be OYSTERS in Kraft, which is just gross....
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Anonymous Coward, 25 Apr 2011 @ 9:19am

Be careful when using the word "commerce".

While this matter pertains to Canada, in the US "commerce" has a distinctive meaning, and if this situation arose in the US it would almost certainly be viewed as involving "commerce".

The far more interesting question concerning what "commerce" means is being bandied about in legal circles with regard to the health insurance "mandate". The Affordable Health Care Act was enacted under Congress' "Commerce Clause" power under Article I of the Constitution. It chose this power over the "Tax Clause".

This has given grist for the mill of those who are challenging the mandate. The question is quite easily framed. How can choosing not to do something (buy insurance) even remotely be viewed as engaging in commerce? Commerce is viewed as an activity. The mandate is including within its scope "inactivity".

Imagine, if you will, a hypothetical act by Congress entitled "The Public Transportation Act of 2011", the terms of which include a mandate that people use public transportation. One choosing to walk, or ride a bike, or use alternate means of getting from Point A to Point B, by engaging the the act of not purchasing a bus ticket and riding the bus, would be subject to a federal financial levy.

Given the financial constraints each of us face daily in making choices concerning what to buy and what not to buy, it is indeed a scary proposition that through the use of the Commerce Clause we might be faced with an invoice from the Feds because we make spending choices not in line with what the Feds have determined we should be making.

In the big scheme of things I find this overreaching exercise of federal power far more troubling than worries about Kraft expressing concerns its products are being dissed by a course name.
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Drew (profile), 25 Apr 2011 @ 9:36am

Re: AC who is confused...Trademark not Health Care
Wow, the AC strikes again trying to change the subject to health care of all things. This is about trademark, get a grip.
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ChurchHatesTucker (profile), 25 Apr 2011 @ 9:43am

Re:
While this matter pertains to Canada, in the US "commerce" has a distinctive meaning, and if this situation arose in the US it would almost certainly be viewed as involving "commerce".

How is this any different than getting a domain like kraftdinnersucks.com?

BTW, I got an idea for their website.
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Anonymous Coward, 25 Apr 2011 @ 9:51am

Re: Re: AC who is confused...Trademark not Health Care
Wrong. My comment was limited solely to the use of the word "commerce" in the article, and that "commerce" has a meaning within the US far broader than many here might believe is actually the case.

Is is admittedly a segue into another area, but one that might serve a useful purpose for any number of reasons. Perhaps you might want to think about it in terms of P2P transfers. Congress does have the power to try and use the commerce clause and/or the tax clause as alternates should the Copyright and Patent Clause fall short of the mark.

Downloading and uploading is an activity that falls within the regulatory powers of both states (intrastate activity) and the federal governmet (interstate and international activity). The pernicious effect of these is that they might apply to both legal and illegal downloads and uploads.
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Danny, 25 Apr 2011 @ 9:51am

Re:
Do they hire people just to scour the internet and newspaper for these things?
That's exactly what they are doing.

Instead of oh I don't know, actually working on product they would rather spend their money looking for people they can either bully for money or bully into oblivion.
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Danny, 25 Apr 2011 @ 9:53am

Re: Retitling the class
Oh maybe, "Cooking Outside the Box".
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Anonymous Coward, 25 Apr 2011 @ 10:15am

Should change it to :

Kick the Krap
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Pitabred (profile), 25 Apr 2011 @ 10:16am

Re: Pro Tip
Aye. I'll sometimes toss in some soy sauce, too. Frozen veggies make a great addition about halfway through boiling the noodles (peas, carrots, beans, stuff that boils well). Sometimes adding a can of tuna is good too, after cooking when you're mixing it all together.

All kinds of great ways to enjoy your mac & "cheese" ;)
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harbingerofdoom (profile), 25 Apr 2011 @ 10:18am

Re: Re:
you shoud get terrance and phillip to be your spokesmen.

i see nothing but buckets of awesome coming out of that.
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harbingerofdoom (profile), 25 Apr 2011 @ 10:20am

Re: Re: Ahh Kraft
putting lobster in kraft would be more like pearls IN swine.

actually, it wouldnt be 'more like'... it'd be exactly that.
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JC, 25 Apr 2011 @ 10:36am

kraft and puffs of smoke
I seem to remember that Philip Moris bought Kraft foods a few years back.
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chris, 25 Apr 2011 @ 10:48am

The system is broken because the threat of a lawsuit from a large company is so intimidating to individuals that they will almost always cave rather than try to defend themselves. This fact makes filing these types of suits almost as good as writing the laws yourself.

Maybe we should outlaw settlements. That way, it's either win or bust and we might see a huge drop in businesses suing individuals and other businesses.
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Dark Helmet (profile), 25 Apr 2011 @ 10:52am

Re: Re: Pro Tip
Hell, you should see the things I learned to do with Ramen noodles when I was just out of college. Gourmet, I tell ya!
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Squidoo (profile), 25 Apr 2011 @ 11:38am

Re:
I have to admit, I once ratted out a website to a company for copyright infringement, but I did it because the guy running the site was a homophobe. I forget how I came across the site, but it was run by a guy calling himself Tony "the Tiger" hislastname. I actually went to Kelloggs' website and emailed them about this guy. I got a response back that their legal department would take care of it.
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ChurchHatesTucker (profile), 25 Apr 2011 @ 12:06pm

Re:
Maybe we should outlaw settlements. That way, it's either win or bust and we might see a huge drop in businesses suing individuals and other businesses.

Nah. That encourages the corps to fight to the proverbial death.

Loser pays has slightly more promise, but then you just end up with a lot of Hollywood Accounting spread across a lot of junior partners.
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Ron Rezendes (profile), 25 Apr 2011 @ 12:11pm

Re: Retitling the class
How about "Kick the Krap Dinner" just so Kraft knows they're the target!
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A different danny (profile), 25 Apr 2011 @ 1:00pm

This lawsuit is the cheesiest!
Or at least that is what every news headline about the case should read.
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Leo, 25 Apr 2011 @ 1:31pm

Another One Bites the Dust
Steve walks warily down the street,
With the brim pulled way down low
Ain't no sound but the sound of his feet,
Machine guns ready to go
Are you ready, Are you ready for this
Are you hanging on the edge of your seat
Out of the doorway the bullets rip
To the sound of the beat

Another one bites the dust
Another one bites the dust
And another one gone, and another one gone
Another one bites the dust
Hey, I'm gonna get you too
Another one bites the dust

How do you think I'm going to get along,
Without Kraft Mac & Cheese, when you're gone
You took me for everything that I had,
And kicked me out on my own

Are you happy, are you satisfied
How long can you stand the cheesiness
Out of the doorway the bullets rip
To the sound of the Mac & Cheese

Another one bites the dust
Another one bites the dust
Another one bites the dust
Another one bites the dust
There are plenty of ways you can hurt a man
And bring cheese to the ground
You can beat him
You can cheese him
You can treat him bad and leave him
When he's down
But I'm ready, yes I'm ready for you
I'm standing on my own powdered cheese wheels
Out of the doorway the bullets rip
Repeating the sound of the cheese.
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ChurchHatesTucker (profile), 25 Apr 2011 @ 3:33pm

Re: Re: Re: Pro Tip
We should do a Techdirt cookbook.

A packet of leftover mustard sauce from Chinese takeaway really spices up some split-pea soup.
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Drew (profile), 25 Apr 2011 @ 3:44pm

Re: Re: Re: AC who is confused...Trademark not Health Care
Although true that the term commerce includes many things lets maybe try and stay on topic, which is 'trademark law' not Health care or downloading. In regards to 'trademark law', at least in the U.S., a particular use must be in commerce to be a violation of the mark. Thanks for trying to defend your attempted change of topic though.
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Anonymous Coward, 25 Apr 2011 @ 4:01pm

Re: Re: Re: Re: AC who is confused...Trademark not Health Care
Use in commerce for purposes of US trademark law is typically a publication of some form in which a mark appears. Thus, were this matter taking place in the US it would almost certainly meet the criteria.

As for hijacking, perhaps so, but at least an attempt to do more than come up with names for a course or new slogan.
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Anonymous Coward, 25 Apr 2011 @ 4:30pm

Home cooking is killing the restaurant industry
Just like the recording companies once tried to argue that home recording was killing the music industry, it looks like some people at Kraft realized the huge losses they would have to endure if people started to cook their own food instead of eating junk food. And they are just as right as the recording companies were.

Consider the implications if everybody could just cook their own food: Nobody would go to restaurants and pay for their meals any more. All the restaurants would go out of business, with millions of people going into unemployment and billions of dollars that would have been used at restaurants disappearing from the economy. With no restaurants there would be no education of new chefs, and after some time nobody would know how to cook, and all of humanity would starve to extinction!

I understand why Kraft would want to stop this, thought I think they are a bit too soft by going to the courts.

Remember that these criminals are not just learning people a craft that will result in the extinction of man. They are doing it for free. For free! Damn communists! I think we should all bring out our pitchforks and have a little lynch party.
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Drew (profile), 25 Apr 2011 @ 4:39pm

Re: Re: Re: Re: Re: AC who is confused...Trademark not Health Care
"Use in commerce for purposes of US trademark law is typically a publication of some form in which a mark appears."

I don't recall seeing that definition in the US trademark law, please correct me if I missed something in 15 USC Sec. 1127:

"The term �use in commerce� means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark. For purposes of this chapter, a mark shall be deemed to be in use in commerce�
(1) on goods when�
(A) it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale, and
(B) the goods are sold or transported in commerce, and
(2) on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce, or the services are rendered in more than one State or in the United States and a foreign country and the person rendering the services is engaged in commerce in connection with the services."

Now a case could be made that a free course could be a 'use in commerce' if the free course was part of an advertising campaign to bring in business for other paid courses. It seems pretty clear to me here that Mr. Clapson was offering these free cooking classes solely to aid college students eating habits and not as any part in a Machiavellian scheme to bring in more business to his cooking blog and in my opinion a court would have agreed. Looking into the Canadian Trade-marks Act (R.S.C., 1985, c. T-13) it seems like this still wouldn't be a violation as there is no likelihood of confusion that this cooking class was offered by Kraft.
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Any Mouse (profile), 25 Apr 2011 @ 4:42pm

Re: Re:
I'd rather spend the extra 5 minutes and make it from scratch, even if I do like the box stuff.
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Anonymous Coward, 25 Apr 2011 @ 5:09pm

Re: Re: Re: Re: Re: Re: AC who is confused...Trademark not Health Care
Mine was a very general comment meant to avoid the recital of statutory "scripture" as contained in Para. (2) above.

I originally honed in on the term "commerce" only because the article here makes the declarative statement that ..."there's no use in commerce". I can easily envision circumstances where this may be true, but this does not appear to be one of them.

Again, however, my comments have been directed to US law since there are likely variations contained in Canadian law.
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Lawrence D'Oliveiro, 25 Apr 2011 @ 7:28pm

Re: Retitling the class
Yeah, call it �Krapt�!
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chris, 25 Apr 2011 @ 9:45pm

Re: Re:
Loser pays is also a key part of my idea since that is pretty standard anyway.
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Vincent Clement (profile), 26 Apr 2011 @ 11:19am

The KD trademark is for the following wares:

(1) Macaroni and cheese.
(2) Pasta and pasta sauces.

So long as Mr. Clapson doesn't use macaroni and cheese, and pasta and pasta sauces in his class, he should be good to go.

Bad PR move on the part of Kraft.
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Jane, 26 Apr 2011 @ 11:41am

Re: Anonymous Coward'
I worked at a newspaper for many years and, as a matter of fact, they DO pay people to scour the internet and newspapers looking for such things. We got a really nasty letter once back in the early '90s because we used the word "Velcro" in a story when we should have used "hook and loop fastener" -- what the reporter mentioned wasn't really "Velcro," it was some kind of generic. I thought it was funny, but they were serious!
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lubos, 26 Apr 2011 @ 1:29pm

Re:
This reminds me of the Simpsons rerun last night. Ken Brockman said some curse word on air, but nobody noticed since folks were no longer watching his news show. Well that is until it got reported on by Flanders, who as it turns out, spends every evening going through various obscure TV channels and magazines looking for immoral behavior. Pretty funny stuff - and obviously true...
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Drew (profile), 27 Apr 2011 @ 1:00am

Re:
A good question I have here is that Mr. Clapson is not selling 'Macaroni and chesse' or 'Past and pasta sauces' but cooking techniques. So even if he included how to cook pasta in his free classes how would that violate the KD trademark?
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wvhillbilly (profile), 1 May 2011 @ 9:49pm

Kick the KD
Shades of Monster Cable suing Disney for Monsters, Inc. and anyone else using the word "Monster" in any kind of a commercial context, even a mom and pop clothing store that used the word "Monster" in its name. Makes me wonder if they'll sue Linux developers over the KDE desktop manager.
Suing your potential customers is no way to build goodwill.
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wvhillbilly (profile), 1 May 2011 @ 10:10pm

Re: Home cooking is killing the restaurant industry
Consider the implications if everybody could just cook their own food: Nobody would go to restaurants and pay for their meals any more. All the restaurants would go out of business, with millions of people going into unemployment and billions of dollars that would have been used at restaurants disappearing from the economy. With no restaurants there would be no education of new chefs, and after some time nobody would know how to cook, and all of humanity would starve to extinction!

Uh-oh! There's that old slippery slope fallacy again.
Most people I know cook at home, and also go out for occasional meals at restaurants too.

Besides, why would Kraft care? Mac and cheese is pretty much a cook-at-home item, so it seems to me cook-at-home would mean more business for Kraft.

Well here we go again. Another silly lawsuit over trivia. I think the real problem is we have too many lawyers with not enough to do, so they must file these silly lawsuits for recreation. (A bit of sarcasm here.)
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