Say I concoct an exact replica of the formula for Coke or Kentucky Fried Chicken in my basement laboratory without any outside assistance? Could I be prevented from selling it under my own brand name? What if, like pharmacies with their knock-off house brands, the name was clearly derivative of original producer: KokaKola or Churchill Downs Fried Chicken?
What if the formula I devise actually deviates significantly from the original but the taste is indistinguishable from the original? Would I be able to sell that?
If the formula is not patentable (food recipes are not patentable), and you derived it completely on your own (that is, you have not misappropriated any trade secrets), you could probably do it.
But, if you were using a name that would be likely to cause confusion, then that might be trademark infringement. “KokaKola” is a pretty easy case. “Churchill Downs” not so easy – I doubt it would be a problem.
If you independently and without deceit derive the secret formula, there are no limitations on your right or ability to sell the knockoff product. “Without deceit” means just that – reverse engineering in the lab, fine; guesswork, fine; Coke left the vault open and the recipe blew out and landed in your convertible as you were driving by, fine. But if Coke has made reasonable efforts to maintain the receipe as a trade secret and you, through deception, theft, subversion, subornation, sneak the recipe away from them: not kosher.
The brand name raises a different question. The issue will be whether your knockoff name is likely to create confusion as to the source of the product, or will dilute the value of the brand name product brand. The test is subjective, but in the examples you give, the soda name would almost certainly not pass muster but the chicken likely would, as KFC doesn’t have the right to control all food brands evocative of the Old South.
I don’t think you could be prevented, but you’d have a hard time convincing people that your brand tastes the same. Brand loyalty and perception would play a huge factor in how much you’d sell.
For instance, say you create Dupli-Cola, with the exact same taste of Coke. Blind taste tests prove that your is indistinguishable from Coke. However, you can’t use their labling, that would be trademark infringement. So you make your own and somehow convince Walmart to sell your soda for 33% less than Coke. Overnight your soda is in stored across the country.
Now, I go to the store and I want a Coke. I know what Coke tastes like, and I only drink coke. (None of that Pepsi crap, and keep the RC as far away as possible!) I see your ‘You can’t tell the difference’ Dupli-Cola and Coke both in the soda aisle. I don’t want something that tastes ‘just like Coke’ because, in my experience, everything else that tastes ‘just like’ something else does indeed taste different. And it costs less, so they must be doing something different than Coke. I don’t want some cheap knock-off, so I just get the tried and true Coke and go pay.
Sure, some people will switch to Dupli-Cola, but you’ll have a tiny market share. Coke pretty much dominates the cola market, and Pepsi just about covers the rest. You’ll be slugging it out with RC, Walmart brand cola, and the other generic colas. You’d end up being that specialty brand that tastes ‘just like’ Coke, but isn’t Coke.
Of course, the eligibility would be the same as for any other patent.
I had always thought that in cases like Coke, they didn’t patent it so that it would not be on the public record, and instead they use protection as a trade secret. Plus, trade secrets don’t expire.
It’s done all the time with generics. Or even similar products. Like “Mr Pib” is close to “Dr Pepper.”
Look at generic producst they often have sound-a-like names. Besides you could take some KFC and say that you made a product just like it and give people a taste test and they would swear it’s different. A lot of brand name is simply the name on the label
In theory. But take a look at the first link. None of those things are based merely on flavor. I don’t see how combining bog-standard ingredients in varying proportions could ever be novel or non-obvious.
And specifically, with regard to Coca-Cola, any theoretical patent would have expired about a century ago.
And, as I pointed out previously, if you derive the recipe completely on your own, there’s no trade secret violation.
Assuming their secret formula is patented, I don’t think you can. OTOH, since anyone can look up patent records, if they *did *patent their recipes, then by definition they’re not secret.
Don’t think they can get you on the name alone, however if you also knock-off the packaging, lettering etc… then they can whether or not your product tastes the same/uses the same recipe
Sure, no problem. You can’t trademark a taste, AFAIK. However, I’d like to know for sure if there are trademark gurus out there. If I can trademark “salty”, “sour”, “bitter”, “sweet” and/or “umami”, I’m a millionaire !
PS : this post is timestamped. You implement my idea, I’ll sue you for MY millions
In theory. But take a look at the first link. None of those things are based merely on flavor. I don’t see how combining bog-standard ingredients in varying proportions could ever be novel or non-obvious.
And specifically, with regard to Coca-Cola, any theoretical patent would have expired about a century ago.
As I pointed out previously, if you derive the recipe completely on your own, there’s no trade secret violation.
The standard is not “sound-alike.” The standard is “likelihood of confusion.”
Even if, as CWG says, it is theoretically patentable, patents last only 20 years (and they were even shorter in the past).
This is slightly hijacking my own thread, but if Harley-Davidson can trademark the distinctive sound of their motorcycles, why can’t Coke, KFC, etc, trademark their distinctive flavor? I would argue that the reason RC Cola isn’t a real threat—and never could be—to Coke (or Pepsi) is it’s inferior flavor.*
Now for a complete hijack: Obviously, copyright prevents me from selling copies of, say, an Ansel Adams photograph, but what if I went to the Grand Canyon and shot a picture that was indistinguishable from one of his? What if Ford produced a car that was shaped exactly the same as a Porsche?
*Of course, this is debatable. If RC Cola had Coke’s marketing would it be the #1 soda? Personally, I think that Coke, McDonald’s and KFC lead their rivals because more people prefer the taste of their product. I don’t think any amount of marketing could convince enough people that RC Cola tastes great to justify the expense. Similarly, Pepsi is a close competitor of Coke because of the taste—but of course, advertising helps get the word out.
(I think it was Bill Bernbach who said, Good advertising helps a bad product fail faster, and I believe that’s true. While certainly some people will do almost anything the man on the TV tells them, I don’t think it can convince the public that they enjoy drinking something that tastes bad.)
The technical answer is that the reason is that trademark statutes don’t provide for a “flavor” to act as a trademark.
The conceptual answer is that a trademark is a “source indicator,” that is a manner of communicating to consumers the source of goods or services. That means it has to be separable from the goods or services itself. If you don’t receive the communication until you’re already consuming the goods, then it has failed as a source indicator.
This is also encompassed in the functionality doctrine. If what you’re trying to claim as a trademark has a function, that is, it somehow changes the goods or service (to make them more appealing, for example), then it’s not acting as a trademark. A product’s flavor is functional.
Probably nobody’s bothered to challenge Harley over their sound. And “superior flavor” can’t be the reason why Coke is successful, since most people (including dyed-in-the-wool Coke drinkers) prefer the taste of Pepsi: That’s what the whole “New Coke” debacle was about. Coke tried to make a cola that tasted better, thinking foolishly that that was what people wanted.
Harley-Davidson attempted to trademark it allegedly distinctive sound. Its competitors strenuously objected, arguing that the sound was not at all distinctive, and in fact common to most motorcycles of similar construction. After years of litigation, H-D withdrew the application.
Some sounds have successfully been trademarked. The NBC G-E-C tones, the Fox fanfare, the Harlem Globetrotters “Sweet Georgia Brown” theme. These are all what reasonable people would call exceedingly distinctive. They are also artificial/ornamental elements appended to article in commerce, unlike the flavor or mouthfeel of food. (An interesting question would be could bubble tea, for example, be suitable for trademark.)
Finally, RC is absolutely splendid and I prefer it to either Coke or Pepsi.
Specifically, “New Coke” was designed to make Coke taste more like Pepsi since Pepsi won the Pepsi Challenge. They found out the hard way the people who drink Coke *don’t want *it to taste like Pepsi.
Compaq did it to IBM back in the early 80’s with their ROM-BIOS. Every other part of the IBM Personal Computer was made from “off the shelf” parts, except their ROM-BIOS. That was the only patented part of their PC. Compaq came along and reverse engineered the ROM-BIOS and proceeded to legally sell their “100% IBM Compatible” PC’s and proceeded to make a killing.
Has anyone provided “legal advice” as opposed to “infomration” in this thread?
Seems to me OP asked about a specific enough plan to embark on a reverse engineering escapade, amd some folks said, in effect, “based on the circumstances”, that is OK.
Some of those may be among those who have were quite active on the Stoid threads…
You don’t reverse-engineer something that’s patented. The patent tells you everything you need to know to make one yourself, but at the same time legally prohibits you from making one yourself unless you license it from the patent holder. It might have been a trade secret, though: Trade secrets offer no protection whatsoever against a successful reverse engineering (basically, you’re gambling that either nobody will succeed, or that it won’t matter if they do).
I didn’t say that any recipe could be successfully patented, only that there is no blanket prohibition against patents for food recipes.
This doesn’t appear to disagree with anything in my post, or address it directly. If you patent a soft drink recipe then you it would have a limited life, and you would spend enormous resources pursuing patent infringement in the meantime. So that may be why the Coke recipe isn’t patented. And they use marketing to make us think there is something special and unique about it.
Come to think of it, I wonder why drug companies patent their drugs. Maybe the temptation to leak the processes would be too great since there is so much money involved and so it could never be kept secret.
Back in the 80’s, Atari’s trademarked logo was a stylized “A.” Marketing came up with the idea of making the game cartridges the same shape as the logo. Legal vetoed the idea because making the logo “functional” in that way could weaken the trademark.
There’s a pretty bright-line rule with trade secrets: if you can reverse engineer an unpatented secret, without cheating, it’s always [thinks of potential exceptions, nope] okay. That’s not legal advice specific to his/her circumstances, it’s a statement of the principle.
