IANAL, but I don’t see where the problem would be. You’ve already compensated the companies by buying their product. What you do with it after you buy it is your business. As long as you’re not taking raw ingredients and making your own Diet Coke and Pepsi with their formula and marketing it as your own creation, I don’t see where any issues would arise.
If it’s made from normal foodstuffs the only regulations would be at the state level. Those wouldn’t have much to do with the ingredients, mostly the food safety regulations about the processing facility.
This is no big deal. Lots of things are made from components manufactured by someone else. Unless those components were obtained under a contract or regulation limiting their usage, when you buy it, you own it, and you can do what you want with it, including selling it, by itself, or in combination with other things. Food really isn’t any different than other products.
That soda pop example was a red herring. He’s going to make chilimac!
There are small car companies that buy high end cars and make them better , when they sell them they still use the original car maker’s name along with their own name.
This is not correct. There are lots of federal labeling rules, as well as other USDA and FDA regulations, that apply to food products of all kinds.
Sorry, I meant in regard to the ingredients. But aside from the labeling rules, I don’t know of any federal regulations that would affect someone who is simply combining ingredients which are already in compliance with existing regulations. Could you elaborate on these other regulations to be concerned with?
I guess maybe I’m following what you mean by “in regard to the ingredients.” If you mean, restricting the content of the food item, then you’re probably right just as a matter of logic. The only restriction that could affect a combination of permitted foods would have to be about the negative interaction of two things. Highly unlikely.
I’ve tried to read through the thread but, to boil it down:
This is an interesting question that I’ve often wondered about.
Say you had a recipe for salsa that that was 95% of your own concoction but contained 5% of Tabasco sauce. How would that be labeled. If you came up for a formula that contained 95% of your own mixture of a soft drink but the last 5% was Coca Cola how would that be labelled?
Government regulations require you to list the contents of your product but with if one of the contents of your product was from a manufacturer that had a proprietary formula and you were buying from at their stated price, combining it with another product and selling it at a premium? The original manufacturer is not being hurt. They are just selling more product.
It seems that in a court of law they couldn’t establish that they have been hurt. After all, they have been paid for the product they produced.
Again, I don’t know. I’m asking the question. Legal minds, chime in.
From a regulatory POV when it comes to labels you would have to ensure that you are listing all ingredients, generally in the order of predominance. You do not have to call out all ingredients specifically (for example: natural flavors/artificial flavors), as it coud give insight in into your formula to competitiors. You don’t have to give up any proprietatary information but you will have to ensure that you declare any allergen at the very least. The newest regulations are moving toward requiring sensitivities being declared as well though it is not required at this time.
In your example you would add the ingredients and allergen statements from the products that you use to your own concontion’s ingredient statement, delete any duplicates and sell it.
If you read the thread I linked to above, you’ll see that it’s not true that “what you do with it is your business” (at least in the U.S.). You specifically cannot buy a company’s product, repackage it, and sell it again; that’s called “reverse passing off” and it’s a violation of the Lanham Act.
However, in the other link I posted above, there’s a discussion of a “reverse passing off” case that failed – a company used table legs from another company in a display model of their own company’s table. In the end, they were ruled to not be “reverse passing off”.
The comments about recipes above make me wonder… if you buy flour, eggs, milk, etc…you can mix them together, processes a bit, and sell it as a baked good. People use eggs and milk in the original form as well. I’m not sure why it would be any different if you replaced “flour” with “Coke”.
-D/a
You would have to be very careful in labeling and marketing to avoid infringing any trademarks.
Back when there were still vending machines that dispensed soda into paper cups, I used to periodically get one from a machine that wasn’t working quite right, and that was basically the result. We called it “Sproke” :).
I note how people have ignored your very astute question.
Why should Coke or Pepsi enjoy special protection here, when Martin’s buns or Guilden’s mustard doesn’t when the hotdog guy uses them in his cart.
As pointed out previously, there’s no difference. The issues here have to do with labeling and trademarks, not the use of the ingredients. Lots of modern products are made out of other products.
For starters, Coke is a registered trademark and flour is not.
For example, if your new bread brand said “made with whole wheat flour!” you’re fine, but if you say “Made with Super Flour (R) from Smith Company (R)” now you’re infringing the trademark.
If you did want to use Coke in a product, you’d have to either license the name, or list it as something like “cola-flavored beverage” in the ingredients to avoid trademark issues.
The other key reason that using Coke is different from flour goes back to the idea of passing off. You can’t simply put flour in a new bag (that’s passing off) but you can cook with it. It’s the cooking that repurposes the flour into a whole new product that clears you from merely relabeling.
In the same way, putting a little Coke in a recipe is also legitimately repurposing it.
However, the OP’s 50/50 mix of Coke and Pepsi may not be enough repurposing to clear it in this regard. Since you’re just taking two off-the-shelf products, you’d probably be ripped to pieces by lawyers from both Coke and Pepsi.
It it safe, then, to assume that all the Guinness flavored treats (let’s assume that they are really and truly made with Guinness) that show up at cafes in the March timeframe are either formally approved by the manufacturer, or are trademark violations because they are advertised as containing Guinness?
I believe that, depending on how you package and label the stuff, you’re going to have a trademark problem.
If your packaging prominently displays trademarks owned by Coca-Cola and Pepsi, it’s most likely going to be both trademark infringement and trademark dilution.
The problem here is that while you’re creating a new product, by using their trademarks in commerce, you are almost certainly going to create (1) a likelihood of confusion as to the source, sponsorship, etc., of the goods and interfere with the trademark holders’ rights to control the quality of the goods being sold under their marks (infringement) , and (2) going to interfere with the unique association that these famous marks have with their owners (dilution by blurring)
Remind me never to eat your cookies.
<disclaimer>
IANA trademark attorney, but I have manufactured food products and electronic hardware and had to check these things out.
</disclaimer>
I don’t know if it would be characterized as a violation if the trademark owner doesn’t complain, but what you said basically applies. And trademark owners increasingly do everything they can to protect their trademarks. Even if there are exceptions, if a company doesn’t like you using their trademark, they are likely to make it expensive for you to keep doing so. But there are lots of cases of small producers using trademarks without permission.