December 1953 saw the name Chocolate Crackles trademarked by Kellogg, despite the fact that the recipe had been in circulation for more than 15 years. The recipe was published on packs of Kellogg’s Rice Bubbles but had previously been promoted by the makers of Copha, another key ingredient of this uniquely Australian confection. A purported attempt by Kellogg to trademark the recipe itself caused a furore in 2003.
It seems that the controversy was, at least to some extent, a beat-up. Culinary heavyweights like Margaret Fulton were approached by the media and shown to be appropriately outraged. However, it appears that it is virtually impossible to trademark, claim copyright over or patent a recipe. Mark Summerfield, a patent attorney, gives an entertaining run-down of why this is so in his blog Patentology (mainly as an excuse to share his Hot Cross Bun recipe). He elaborates further on the copyright issue, referring to an article in the Fortnightly Review of IP and Media Law, which he quotes as saying:
A recipe in its written form is likely to be protected by copyright. However, to infringe the copyright, you would probably have to copy and reproduce the recipe verbatim. This is because there is no copyright in a list of ingredients. Nor is there copyright in ideas. There is also no copyright in the expression of a method of preparation unless it qualifies as a literary work i.e. it has to be more than just a list of steps.
Mark comments: “The issue with the CHOCOLATE CRACKLES(TM) recipe is that the ‘genuine article’ includes the KELLOGG’S(TM) ingredient RICE BUBBLES(TM). Reproducing that recipe in a commercial context might infringe those trademarks. Modifying it to name an alternative (or generic) product, but still calling it CHOCOLATE CRACKLES, in a commercial context, probably also infringes that trademark.”
He points out that although Kellogg was successful in gaining a trademark over the name Chocolate Crackles to prevent competitors from using the term to promote their own products, he was ” unaware of them having since sued any mothers, fathers or children for making, or even selling, cocoa and Copha slathered Rice Bubbles!”