Let’s say for instance…that I think the taste of Diet Coke mixed 50/50 with Pepsi is the greatest thing on earth.
Best taste with only half the calories of regular soft drinks…yadayada.
I’d like to bring this product to market (not really).
What hurdles would have to be cleared in such an endeavor?
Bonus question; What about two products from the same company, like Sprite and Coke mixed 50/50, or maybe even more palatable Sprite and Diet Sprite? Can a company outsider create these concoctions and then re-market them?
I always wondered why they don’t make these mixes in bottles (same brands-coke/diet coke etc.). For those times when you might want a carbonated soft drink that, doesn’t taste like (diet) ass and has a little sweetness to it, with half the calories.
The real question is , “Is this a sensible thing to do?” and “Why not?”
The original “What if… question” is a long way off from any kind of reality!
You would run into all kinds of trouble from the manufacturers of one or both products for violation of their trademarks, proprietary formulas, etc. etc.
How are you planning to sell this and where’s your profit coming from?
If you’re serving it as a mixed drink in your bar I can’t imagine anyone would stop you. If you’re buying diet coke and pepsi max in bulk, mixing them together and marketing them as diet cax … I have no idea what kind of trouble or non-trouble you might encounter.
I’m not sure if you would run into a problem with selling them or even advertising the contents of what you sell. You might or might not.
But on the other hand I’d imagine that you also wouldn’t be able to protect your formula, so anyone else would have an equal right to sell exactly what you sell under a different name, unless Coke were to give you rights.
As a real world example, I have seen commercially sold packages of trail mix that include M&Ms as part of their product (and list them as such in the ingredients).
I will say that an unnamed restaurant I worked at one time had it’s own special barbecue sauce. I made it myself a few times. It was two commercial barbecue sauces mixed 50:50.
IANA expert on these sorts of things, but my WAG would be that you actually could get away with selling such a product as long as you either got expressed permission from the manufacturing companies to use their names in your advertising, or you could sell it without making any mention of the original product and wouldn’t need their permission.
I don’t see how this is any different than going to a hotdog stand and buying a hotdog made from buns, franks and condiments all bought at a grocery store.
I think there are two separate questions to answer here:
Let’s assume that you have lawfully obtained the two food products (you haven’t stolen them from the plant, or a distributor, but have obtained them from lawful sales channels, either by buying them from a gray market distributor, by registering as a distributor yourself (no false representations having been made and no restrictive contract signed), or by buying bottles straight from the corner store).
Is it legal to mix two of these products, slap your own label on them, and sell them under your own name. E.g. “John Smith’s Awesome Cola!” that says nothing about the fact that it contains Diet Coke or Pepsi, but might have an disclosure statement listing the ingredients of Diet Coke and Pepsi as listed on bottles of Diet Coke and Pepsi under “Ingredients”
Is it legal to mix two of these products and market them as your own mix? E.g. “John Smith’s Coke and Pepsi Uber Ultra Fusion - A smooth mix of Diet Coke and Regular Pepsi for Generation Y”?
You can do this. You can even state what the contents are. You might get a lot of flak, and the resulting legal bills from the companies whose products you use, but you haven’t harmed them in any way. You can buy these products and use them any way you want, and resell them if you like (but you can’t claim any authorization of this use or resale by the original companies, or make claims about the ingredients based on their trade names and reputation). And if it’s a good product, made from components from non-competing companies, they may even like the idea.
But a word of warning to those who might go straight down the line and mix all fountain drinks together – you’ll get a final product that tastes like watered-down Dr Pepper but with an artificial sugary after taste (yum!) Plus if you get crazy and add some coffee you’ll have Dr Pepper flavored coffee.
A lot of recipes call for specific brand name items. M&M cookies. Cakes made with Kraft Mayo. Some recipes are even developed by the manufacturers to encourage people to use their product.
I have wondered about the legal issues. For example a bakery that sells M&M cookies or a cake with Kraft Mayo. There’s even a Coke Cake recipe. They are using a retail product and converting it into a new product.
This is not quite the case from the original post, but there was a thread on this board about “reverse passing off” (ie. taking a competitor’s product, repackaging it, and reselling it). Apparently it’s a violation of the Lanham Act.
Here’s an article linked to in the aforementioned thread.
I don’t know why this made me laugh out loud as much as it did, but it did. I’m even tempted to try to photoshop out a can of diet cax (the lowercase letters are important).
Or market to a more upscale clientele who might expect to pay more for a “premium” soda.
Going with the buying in bulk idea, one could “value add” to the product by selling it pre-refrigerated at a premium at roadsides (hey, gas stations do it with soda already!)