# How do copy right laws work with nearly identical food products? **URL:** \ **Category:** Factual Questions\ **Created:** [October 15, 2010, 7:39pm UTC](https://boards.straightdope.com/t/how-do-copy-right-laws-work-with-nearly-identical-food-products/557282 "2010-10-15T19:39:33Z")\ **Posts on this page:** 13\ **Page:** 1
**Author:** ![Yairtis](https://avatars.discourse-cdn.com/v4/letter/y/d26b3c/32.png) [@Yairtis](https://boards.straightdope.com/u/Yairtis)\ **Post date:** [October 15, 2010, 7:39pm UTC](https://boards.straightdope.com/t/how-do-copy-right-laws-work-with-nearly-identical-food-products/557282/1 "2010-10-15T19:39:33Z")
I notice that in lots of grocery stores you have a lot of products that are obvious and straight up knock offs of famous brands. Take for instance, Oreo’s. There are dozens of nearly identical cookie products that are not actually Oreo’s. Or hand candied shell chocolates that look just like M&M’s but are not actually officially that brand. And then of course, you have the countless number of cheaper cereal knock offs that come in the forms of bags. Not that I mind these knock off products, as I think having choices is great for the consumer and they are sometimes better than the original. I am just curious as to how copy right infringement works with brand food products. Is it only for the name? To what extent can a company protect its recipe? ---
**Author:** ![FatBaldGuy](https://avatars.discourse-cdn.com/v4/letter/f/ecd19e/32.png) [@FatBaldGuy](https://boards.straightdope.com/u/FatBaldGuy)\ **Post date:** [October 15, 2010, 7:46pm UTC](https://boards.straightdope.com/t/how-do-copy-right-laws-work-with-nearly-identical-food-products/557282/2 "2010-10-15T19:46:14Z")
Copyright has nothing to do with food products. A brand name, such as Oreo, is a registered TradeMark. You can make and market any product you want, as long as you don’t infringe on someone elses TradeMark. Some aspects, such as Coca-Cola’s “secret formula” may be considered trade secrets, and are protected as such, and some non-food products may be subject to patents, but that is a separate issue. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [October 15, 2010, 7:54pm UTC](https://boards.straightdope.com/t/how-do-copy-right-laws-work-with-nearly-identical-food-products/557282/3 "2010-10-15T19:54:16Z")
Copyright exists in literary, artistic and musical works, not in food products. ---
**Author:** ![The\_Hamster\_King](https://avatars.discourse-cdn.com/v4/letter/t/8edcca/32.png) [@The\_Hamster\_King](https://boards.straightdope.com/u/The_Hamster_King)\ **Post date:** [October 15, 2010, 9:09pm UTC](https://boards.straightdope.com/t/how-do-copy-right-laws-work-with-nearly-identical-food-products/557282/4 "2010-10-15T21:09:14Z")
> [@Yairtis](#): > > To what extent can a company protect its recipe? [Recipes are not copyrightable.](http://www.copyright.gov/fls/fl122.html) However … you \*can \*copyright a particular \*expression \*of a recipe. So if, for example, if you wrote a cookbook I can’t just Xerox it and sell copies. But if I went through and rewrote the instructions for each dish in my own language, you wouldn’t have any recourse. ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [October 15, 2010, 10:29pm UTC](https://boards.straightdope.com/t/how-do-copy-right-laws-work-with-nearly-identical-food-products/557282/5 "2010-10-15T22:29:09Z")
The example of this is in candies. Hershey wanted to buy up Heath Bars and sell them, but Heath refused. So Hershey manufactured Skor, which were designed to be pretty much the same thing (the recipe for toffee and chocolate are no secrets). Heath couldn’t stop them. Eventually, Hershey did manage to buy Heath, but they’re still making both brands. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [October 15, 2010, 10:37pm UTC](https://boards.straightdope.com/t/how-do-copy-right-laws-work-with-nearly-identical-food-products/557282/6 "2010-10-15T22:37:15Z")
It’s also _possible_ to protect how your product’s packaging looks, although this is _not_ always done. This is called protecting the [‘trade dress’](http://www.lectlaw.com/def2/t035.htm): > [@](#): > > The non-functional physical detail and design of a product or its packaging, which indicates or identifies the product’s source and distinguishes it from the products of others. It’s similar in broad concept to trademark, as it is ultimately a consumer protection law, but it is not quite the same. The final ways to protect a product are patents and trade secrets. So far as I know, this only comes into play if you’ve invented some new way to do something: The patent gives you a temporary monopoly on using your method in exchange for revealing your invention publicly (the word ‘patent’ derives from the Latin word _patentum_, ‘to lay open’) as opposed to keeping it a trade secret. A trade secret is protected by making everyone who works for you sign a contract wherein they promise to not reveal any of your business secrets to the outside world. In theory, they can last forever. However, contracts are generally not binding on people who have not signed them, so if your competitor figures out how you do it _without spying_, your secret is lost and you can’t do anything to stop them from copying you. (If they _did_ spy, you can get the courts to force them to stop. Industrial espionage is a serious concern in some industries.) The most famous trade secret is probably the precise formula for Coca-Cola, so the concept _does_ apply to the food world. Note, however, that this doesn’t do anything to stop any of the other colas from existing in the same markets. However, they can’t call themselves ‘Coca’ or use the red-and-white scheme in their design due to trademark law. ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [October 16, 2010, 12:44pm UTC](https://boards.straightdope.com/t/how-do-copy-right-laws-work-with-nearly-identical-food-products/557282/7 "2010-10-16T12:44:53Z")
> [@FatBaldGuy](#): > > Copyright has nothing to do with food products. A brand name, such as Oreo, is a registered TradeMark. … FYI “trademark” is a single word and at least in US legal use doesn’t have a uppercase T, and especially doesn’t have (ever) an uppercase M in the middle. Other than that, I agree with everything you said. ---
**Author:** ![Markxxx](https://avatars.discourse-cdn.com/v4/letter/m/5daacb/32.png) [@Markxxx](https://boards.straightdope.com/u/Markxxx)\ **Post date:** [October 16, 2010, 1:12pm UTC](https://boards.straightdope.com/t/how-do-copy-right-laws-work-with-nearly-identical-food-products/557282/8 "2010-10-16T13:12:12Z")
While it’s possible to patent a recipe, in practice, it’s very difficult to do. You can’t prevent the knockoffs the trademark would help prevent confusion For instance, Oreos and Hydrox, which are similar but different in name and it’s clear when you buy one, you’re not getting the other. However if you made a knockoff of an Oreo and called it Oreoreos, you’d find yourself in trouble in a second because Oreoreos is to close to Oreos ---
**Author:** ![Una\_Persson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/una_persson/32/346_2.png) [@Una\_Persson](https://boards.straightdope.com/u/Una_Persson)\ **Post date:** [October 16, 2010, 2:13pm UTC](https://boards.straightdope.com/t/how-do-copy-right-laws-work-with-nearly-identical-food-products/557282/9 "2010-10-16T14:13:01Z")
> [@Markxxx](#): > > However if you made a knockoff of an Oreo and called it Oreoreos, you’d find yourself in trouble in a second because Oreoreos is to close to Oreos Wasn’t that from a song by Morris Day and the Time? “Jungle love! (Oreoreo) Girl I want to know ya…” ---
**Author:** ![ftg](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ftg/32/2801_2.png) [@ftg](https://boards.straightdope.com/u/ftg)\ **Post date:** [October 16, 2010, 7:47pm UTC](https://boards.straightdope.com/t/how-do-copy-right-laws-work-with-nearly-identical-food-products/557282/10 "2010-10-16T19:47:43Z")
> [@Markxxx](#): > > For instance, Oreos and Hydrox, which are similar but different in name and it’s clear when you buy one, you’re not getting the other. Hydrox can no longer be “the other”. They [went out of production](http://en.wikipedia.org/wiki/Hydrox) many years ago and, except for a brief “centennial” revival, are in the cookie version of dodo-land. (This is my nitpick of the week. Just made it under the wire!) ---
**Author:** ![C.Montgomery\_Burns](https://avatars.discourse-cdn.com/v4/letter/c/ecd19e/32.png) [@C.Montgomery\_Burns](https://boards.straightdope.com/u/C.Montgomery_Burns)\ **Post date:** [October 18, 2010, 12:07am UTC](https://boards.straightdope.com/t/how-do-copy-right-laws-work-with-nearly-identical-food-products/557282/11 "2010-10-18T00:07:09Z")
> [@ftg](#): > > > [@Markxxx](#): > > > > For instance, Oreos and Hydrox, which are similar but different in name and it’s clear when you buy one, you’re not getting the other. > > Hydrox can no longer be “the other”. They [went out of production](http://en.wikipedia.org/wiki/Hydrox) many years ago and, except for a brief “centennial” revival, are in the cookie version of dodo-land. (This is my nitpick of the week. Just made it under the wire!) It may have something to do with the fact that “Hydrox” sounds less like a cookie and more like an industrial cleanser… ---
**Author:** ![falcotron](https://avatars.discourse-cdn.com/v4/letter/f/3ab097/32.png) [@falcotron](https://boards.straightdope.com/u/falcotron)\ **Post date:** [October 18, 2010, 12:17am UTC](https://boards.straightdope.com/t/how-do-copy-right-laws-work-with-nearly-identical-food-products/557282/12 "2010-10-18T00:17:24Z")
> [@C.Montgomery\_Burns](#): > > It may have something to do with the fact that “Hydrox” sounds less like a cookie and more like an industrial cleanser… When Keebler took over the failing Sunshine, they figured that was exactly the problem, so they renamed them “Droxies”. Which sold even worse, possibly because it sounds like a recreational drug that went out of fashion in the 70s. ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [October 18, 2010, 12:22am UTC](https://boards.straightdope.com/t/how-do-copy-right-laws-work-with-nearly-identical-food-products/557282/13 "2010-10-18T00:22:57Z")
> [@Derleth](#): > > This is called protecting the [‘trade dress’](http://www.lectlaw.com/def2/t035.htm): > > > [@](#): > > > > The non-functional physical detail and design of a product or its packaging, which indicates or identifies the product’s source and distinguishes it from the products of others. > > It’s similar in broad concept to trademark, as it is ultimately a consumer protection law, but it is not quite the same. Apparently putting goats on the roof of your restaurant is sufficiently protectable under trade dress laws: > **[Do you have goats on your roof? Get them off or be sued!](https://boards.straightdope.com/sdmb/showthread.php?t=580469)** > > There is a famous restaurant in Sister Bay, Wisconsin, Al Johnson’s Swedish Restaurant, that has a sod roof. The grass is kept trimmed, as often done in Sweden (I guess), by live goats. No, they don’t fall off, and they are quite a tourist...