Using off the shelf ingredients for my food product

February 23, 2005 7:57 AM

If I had a tasty recipe for a snack of some kind and wanted to bring it to market, would it be legal to use an already existing product as an ingredient - Rice Krispies or Planters Peanuts for example? The ingredient names would be something like 'puffed rice' and 'peanuts' respectively, and not the actual product name.

I guess the real question applies to using any product on the market; no-name products as well as the brand names mentioned above. Obviously if my product were to sell boatloads, the Rice Krispies folks would be making more money as I'd be using their product like mad. Would this require the company's permission?

posted by jikel_morten to law & government (11 comments total)

How big a market?
posted by mischief at 8:05 AM on February 23, 2005

I can't imagine you could do this because of the money factor - if you were using peanuts from Planters, for example, they'd cost tons more than if you got them from a supplier of ingredients.
posted by agregoli at 8:10 AM on February 23, 2005

What agregoli said. If you really think it's necessary to use Rice Krispies and not any other kind of puffed rice, I'd go to Kellogg's and try to work out a bulk deal. You want to pay the price of puffed rice, which is the price of Krispies minus the cost that they have to make to market the Rice Krispies brand (which should be lots).
posted by NekulturnY at 8:18 AM on February 23, 2005

Well, I meant off-the-shelf products in general. I realise that one would use generic ingredients, but if one wanted to use a specific product, a Mars bar for example; could a Mars bar just be melted down and shaped into a ball and rolled in oats and sold as a chocolate oat-ball or some such thing? Theoretically, of course...
posted by jikel_morten at 8:25 AM on February 23, 2005

Several cookbooks call for "brand-name" ingredients. It's probably safe enough if you simply make sure to attribute the trademarks to their owners, as in "Mars Bar (tm)"

I don't know if the authors pay someone, but I highly doubt it.
posted by odinsdream at 8:29 AM on February 23, 2005

* meant to add that somewhere you'd put that little legalese: "Mars Bar is a registered trademark of the Mars company."
posted by odinsdream at 8:31 AM on February 23, 2005

Would this require the company's permission?

No, under what is known as the first sale doctrine, once you have paid the company for its product, the company loses its ability to control the re-distribution or use of that product (within existing law). One limitation on your re-use will the use of the trademarked names of the products themselves. Namely, you wouldn't be able to use those names on your packaging without the permission of the trademark owners (which they won't give you anyway). However, as you seem to indicate, you'd be using generic descriptions of the products, so that wouldn't be a problem for you.
posted by thewittyname at 9:11 AM on February 23, 2005

could a Mars bar just be melted down and shaped into a ball and rolled in oats and sold as a chocolate oat-ball or some such thing?

You could, but as others have pointed out, it would be far more expensive than using a generic, and probably wouldn't gain you much. And again, you run into problems with licensing if you try to market the thing incorporating someone else's trademark.
posted by me3dia at 9:31 AM on February 23, 2005

The first sale doctrine, as cited, applies to physical embodiments of copyrighted materials. There are also many limitations on "re-use" including a bar on making derivatives. I would be wary of generalizations, as this analysis is very fact specific. That said, I don't see how copyright is immediately implicated here. Trademarks and trade dress/product configuration are far more likely to come into play.
posted by anathema at 12:38 PM on February 23, 2005

That's a fair enough criticism, but trademark won't come into play in this scenario unless jikel somehow uses the trademarked name (either on the packaging or in advertising).

Essentially, the first sale doctrine applies to intellectual property, which is the direction I though jikel was going in. As for physical property, the analysis is even easier. The company (Kellog's, Planter's, whomever) is engaging in a basic market transaction with you (well, it's actually through a middleman, the supermarket, but that doesn't change anything). At the end of this transaction, jikel holds complete legal title to the goods in question.

Essentially, once Kellog's has taken your money, jikel, they've agreed to relenquish the rights to the physical package of cereal that you bought. It's yours to use as you please. What they have not done is give you any rights to the product name, the intellectual property of the brand Rice Crispies. So, therefore, what you have to work with is a box of puffed rice.
posted by thewittyname at 1:48 PM on February 23, 2005

First sale doctrine applies to patents, but in a completely different context. First sale doctrine does not apply to trademarks. It does apply to copyright. It is vital when talking about "intellectual property" to distinguish between the different flavors. Further, trademark/servicemark/trade dress/product configuration laws extend far beyond a "trademarked name."

jikel, if you have any doubts about what you are planning you should consult a professional.
posted by anathema at 3:35 AM on February 24, 2005