5

In example:

If someone sells homemade ice cream where they have crumbled oreos and mixed in to make homemade Oreo ice cream, but generically named "Cookies & Cream"

or

If someone uses Great Value knockoff of M&Ms in their homemade cookie dough, and sells it as something like "Rainbow Chip Cookies"

Assuming someone has the basic business licenses (to sell food):

Is this legally ok to do with just the basic business licenses?

If not, what would it take to be in compliance?

Per fetweet's comment, I've added his questions which may help to answer the initial basic question.

  1. What are the guidelines per the FDA, for food related ideas? Does the FDA have anything to do with non-food ideas?

  2. Does a branded product that is used as an ingredient have to be listed as an ingredient with its branded name? What about in non-food ideas? What's the procedure for legally listing these branded products as ingredients with their branded names? Couldn't the branded ingredient be bypassed in being listed in the main product by using the ingredients listed on the branded ingredient instead?

  • Unclear what you're asking: How the ingredients have to be listed, per the FDA? Whether a branded ingredient has to be listed with its trademarked name? – feetwet Sep 28 '15 at 14:29
  • Feetwet, both of those questions would help anyone who would come to a website that answers layman questions which may not have all the details since a layman wouldn't understand all that's involved. Thanks, I'll update the question to include that. – Howard Davis Sep 28 '15 at 14:43
  • In order to not confuse things I would recommend restricting the question to the highly-regulated packaged food domain. Outside of that it's either too broad or too obvious a question. E.g., "Can I sell a bike I assemble from parts (Shimano shifters, Giant wheels, etc.)?" Of course: most complicated products are made from simpler products produced by other companies. – feetwet Sep 28 '15 at 16:32
  • it is done with software all the time – amphibient Sep 28 '15 at 21:17
5

Yes, it is legal to sell something that uses another product as one of its ingredients. And yes, you can include the name of the product in the ingredients list. That said, if you do it and are successful enough you will probably get a cease and desist letter!

The Supreme Court held a long time ago in Prestonettes, Inc. v. Coty that a buyer can purchase a trademarked good, repackage it, and then resell it.

The defendant of course by virtue of its ownership had a right to compound or change what it bought, to divide either the original or the modified product, and to sell it so divided.

The court reminds us that trademarks are not copyrights; they not confer a right to prohibit the use of a word or words.

...unquestionably the defendant has a right to communicate... that the trade-marked product is a constituent in the article now offered as new and changed.

In this case the name of the original product was included on the package in non-distinct lettering; stating that the original product was contained in the new product. I mention this because the ultimate decision is fact-specific.*

So the Supreme Court tells us that we can repackage trademarked goods. The court also tells us a bit about the label - we cannot call out the trademarked name as this might confuse consumers:

If the [trademarked name] were allowed to be printed in different letters from the rest of the inscription dictated by the District Court a casual purchaser might look no further and might be deceived.

So, what about that FDA, what do we need on the label?

You find this answer in 21 CFR 101.4(b)(2).

(b) The name of an ingredient shall be a specific name and not a collective (generic) name, except that:

(1) Spices, flavorings, colorings and chemical preservatives shall be declared according to the provisions of §101.22.

(2) An ingredient which itself contains two or more ingredients and which has an established common or usual name, conforms to a standard established pursuant to the Meat Inspection or Poultry Products Inspection Acts by the U.S. Department of Agriculture, or conforms to a definition and standard of identity established pursuant to section 401 of the Federal Food, Drug, and Cosmetic Act, shall be designated in the statement of ingredients on the label of such food by either of the following alternatives:
(i) By declaring the established common or usual name of the ingredient followed by a parenthetical listing of all ingredients contained therein in descending order of predominance except that, if the ingredient is a food subject to a definition and standard of identity established in subchapter B of this chapter that has specific labeling provisions for optional ingredients, optional ingredients may be declared within the parenthetical listing in accordance with those provisions.
(ii) By incorporating into the statement of ingredients in descending order of predominance in the finished food, the common or usual name of every component of the ingredient without listing the ingredient itself.

Here is an example of (i):

enter image description here

But also note the picture of the box. That Hershey's Kisses trademarked image indicates that there is an agreement between the companies. So only use this image as an example of 21 CFR 101.4(b)(2)(i) ingredients labeling - the box cover is not an example of nominative use.

*This is nominative fair use and has been discussed in other questions on this site. Court of Appeals for the Ninth Circuit in New Kids on the Block v. News America Publishing, Inc.: one party may use or refer to the trademark of another if
1) The product or service cannot be readily identified without using the trademark;
2) The user only uses as much of the mark as is necessary for the identification;
3) The user does nothing to suggest sponsorship or endorsement by the trademark holder.

  • 1
    Big thanks for yhe the very helpful information! – Howard Davis Sep 28 '15 at 19:26
  • 1
    Interesting to think how this could apply to music "remixes" by using ingredients without labelling said ingredients in a deceitful manner – Jesse Sep 30 '15 at 4:34
  • 1
    In the same manner, I imagine you would have to purchase the music that was not made by you before you include it in your musical recipe as per the licensing of the producer of said music. – Howard Davis Oct 10 '15 at 23:11
  • @Jesse Music is different, because that's covered by copyright and food generally isn't. "Buying" the music in a store generally only gives you the right to own that one copy, listen to it for your personal enjoyment, and sell it. Making a copy is not allowed, nor is making a derivative work, nor are public performances. So how are you going to do a musical remix without doing any of those things? You'd have to get specific permission from the copyright holder. – D M Jan 31 '18 at 18:02

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