I just wanted to point out that Coke is an interesting product to choose as an example because they don’t have any sort of patent or protection on their actual product (just their trademark and any other legal protection of their logo/name). So, if you wanted to make your own soda, you’d absolutely be able to combine it with whatever you want… or just sell it as your own.
In fact, if you wanted to do that for any type of food, you could (mac and cheese; bacon and eggs; Cornish Ram’s bladder, emptied, steamed, seasoned with sesame seeds, whipped into a fondue, and garnished with lark’s vomit). The crux of all of this seems to be whether or not you can use name brand foods, which has already been explained: not without permission from the company or a really great team of lawyers.
There’s also this, from our friends at Wikipedia:
If you could convince Coke to just send you the concentrates, you could mix them and bottle your new concoction without a problem… until Coke figures out what you’re doing and stops selling to you.
Another interesting point is that you could re-purpose two patented products and then patent/sell the result. I’m not sure how this would work with food, though…
Taking Coca-Cola in any form and simply repackaging it would be ‘reverse passing’ as described in an earlier post. You can’t get Coca-Cola concentrate without a contract in the US, and probably in the rest of the world there is a high level of protection. But if you weren’t violating their trademark or reverse passing, they have no reason not to sell you the concentrate, and may do so already.
Another area of concern for them would be the ‘gray market’, where there product would be made in another country and brought here to sell. I don’t know what the legal protections would be in that case. It may not be a concern for Coca-Cola. Some years back the price of Coca-Cola was about the same everywhere in the world. Free trade may have ended that though.
As far as protecting their secret ingredients, they rely on the strongest form of protection, a corporate secret. All the people who know what the formula is are bound by contract not to reveal it. It doesn’t really matter though, it isn’t difficult to duplicate the ingredients or flavor of Coca-Cola. Big companies don’t do it because they want their own unique flavor, and a smaller company trying it will go bankrupt trying to fend off the Coca-Cola company’s legal attack.
There would be no legal attack unless they are using Coca-Cola’s trademarks in commerce. If a small company wants to make a duplicate flavor they can go ahead – my conjecture is that such duplicates already exist – but they have no chance of threatening Coke because they can’t free ride on Coca-Cola’s good will.
There are a lot of ice cream brands sold in stores that advertise “Oreo cookie” and “Reese’s cup” as being in them. They are referring to those products by their brand names, and the argument could be made that the ice cream is essentially making money off of the brand recognition of Oreo and Reese, instead of generic cookie / chocolate peanut butter cup in its place.
In such a situation I would imagine the ice cream company has some agreement with Hershey / Nabisco.
This is a state-by-state kind of thing, but I think it’s not that they’re sold in “ordinary” stores (i.e., your everyday convenience store selling potato chips and sodas couldn’t add a display rack of hootch), but that drug stores that are licensed to sell OTC pharma stuff are covered by that state’s definition of “drugs” to include alcohol.
That was the explanation I got in Maryland, anyway, when I was very surprised (moving there from NYC for 2 years) to find that I couldn’t buy beer at the supermarket, but could get both beer and liquor at the CVS. In NY, beer was one license (which supermarkets typically had) and beer + hard liquor another (which they didn’t - too expensive to get for every store in the chain), and no drug stores carried alcohol other than of the rubbing or mouthwash variety.
Lots of people have claimed that you would be prohibited from advertising the combination using the trademarks of the ingredients, but does anyone have a cite for that?
I know that it’s legal to refer to another mark as long as you do so to accurately identify it. For example, Coke could say that it’s “preferred to Pepsi 2:1” or something. They don’t need Pepsi’s agreement to mention them.
I’m fairly sure that it’s legal to advertise the mark of something you sell, as long as you are being accurate. So, the hot dog stand can say “We proudly serve Hebrew National hotdogs” as long as they are, in fact, serving those hot dogs.
So why would I need anyone’s permission to sell “Coke mixed with Jack Daniels” if I’m actually selling a mixture of Coke and Jack Daniels? I’m using the marks to accurately identify the ingredients of the mixture.
For practical reasons, it’s probably a good idea to have an agreement so you can buy the ingredients wholesale, etc. But that’s very different than required by trademark law.
The problem using ingredients mixed and prepared by other is that you don’t know exactly what is in them. OTOH, if you label your ingredients as “Coke” and “Pepsi”, can you absolve yourself of food testing requirements on the assumption that Coke and Pepsi test their own products?
Finally, if you mix in some chemicals of your own without knowing exactly what is in the Coke and Pepsi, is it conceivable there might be some kind of reaction resulting in a toxic product? Or explodes violently if you add orange juice?
You know what’s in them because they’re labelled with ingredients. You may not know the amounts, but that doesn’t matter. If you can purchase the ingredients, then you know they should have passed any necessary testing, which isn’t much. Finally, any chemicals you would add would have to be ordinary foodstuffs, and in combination with other ingredients are no more toxic than if you ate the ingredients individually. If your unique product harms people you will be held responsible no matter where you obtained the ingredients from.
No, listed ingredient are not all the ingredients. They must be present in “significant amounts” to be included. I’m not sure what the legal definition of “significant” is, but it is conceivable to me that two unknown “insignificant” ingredient could combine to form a significantly dangerous one. Though I will admit it’s unlikely.
If you could come up with such an example of an ingredient in a food product in amounts not significant enough to list on a label that could dangerously interact with other ordinary foodstuffs, I will gladly retract my statement.
If this was a serious consideration for chemicals found in insignificant quantities in ordinary foodstuffs, people would be dropping dead all the time after ingesting these substances by eating different products. Even Pop Rocks and Pepsi won’t kill you.
I think you might explode if you slugged down Diet Coke right after popping a couple of Mentos. But I’m much more an expert in paranoid worries than I am in chemistry.
The amount definitely matters. So does government regulation of food products. Certain ingredients, like alcohol and caffeine can lead to complications with medication, but as far as I know you should be safe mixing properly prepared foods unless you have some sort of weird allergy.
Yes, and even nitrites, nitrates, and other additives. But if you mix two ingredients together without further processing, it’s not possible to exceed allowable levels of these ingredients. Even with further processing of the food which increases their concentrations, you would be aware of any significant amounts of these substances through the labelling. If you chemically extracted the cyanide in almonds you could make a dangerous product, but I doubt there is any specific food regulation applying to that. You would still be responsible for any harm reasonably caused by your product though.
Fillet of a fenny snake,
In the cauldron boil and bake.
Eye of newt and toe of frog,
Wool of bat and tongue of dog,
Adder’s fork and blind-worm’s sting,
Lizard’s leg and owlet’s wing,
For a charm of powerful trouble,
Like a hell-broth boil and bubble.
Double, double toil and trouble,
Fire burn and cauldron bubble.
[/QUOTE]
Remember kids, bleach and ammonia are not friends!
Re the “Jack & Coke” thing, i’m fairly sure that the makers of those kinds of beverages have different formulations that they sell in different markets depending on the liquor laws there. I seem to recall reading that Mike’s Hard Lemonade, for instance, is made with real vodka in Canada, whereas the US version is a “flavored beer” which allows it to be sold in most states without running afoul of liquor laws.
