-2

Is it legal to literally purchase all of the ingredients in a product and make your own product with minor changes?

Ie; I’m making a hair growing serum but I want to put a small % of Selsun blue (another brand product) in it

1
  • When you would do this seriously, then you would likely want to create a business relation with Sanofi anyway in order to establish a reliable and cheap supply line for one of your ingredients. So you would have to engage in negotiations with them anyway.
    – Philipp
    Oct 29 '20 at 12:49
2

It sounds like you're not proposing purchasing the ingredients in Selsun Blue, but Selsun Blue itself. This changes the nature of your question. What you are making is more akin to a derivative work.

First I want to address your use of the ingredients of Selsun Blue. While the recipe and ingredient list of Selsun Blue is not copyright-able, the means of production and list of ingredients is considered a trade secret. Whether using a derivation of the recipe used by Selsun Blue is a lawful practice depends largely on how you obtained the recipe. You'll want to review 18 U.S.C. § 1831, et seq. Assuming you obtained the recipe legitimately, your use of ingredients to sell a competing product would seem to be lawful.

However, as you seem to not be using the recipe of Selsun Blue, but the product itself. This becomes extraordinarily tricky. Firstly, you can't use their name in your product's packaging. "This product contains Selsun Blue" for instance, would not be permitted, as their product name is a registered trademark. This would also unlawfully confuse consumers as to the source. Your product can't mimic the trade dress of Selsun Blue, that is, the look and feel of the product. As it literally has the ingredients as a component, you'd have to differentiate your product significantly to ensure you're avoiding even slightly appearing to be the same product. And most importantly, you have to check for patents related to this product. If including Selsun Blue causes your product to infringe on one of their patents, then you cannot proceed least you obtain a licence from the patent owner.

In summary, you cannot trade on the rights of Selsun Blue, whether they be copyright, trademark/trade dress or patent and you can't advertise your product using their trademark.

5
  • 1
    The Selsun Blue bottles don't have language saying what you can and can't do with their patented product on them, do they? Why then would it then be a patent violation to use the patented and paid-for product as a component in your product, when it wouldn't be for a patented microchip or a patented thickening agent bought in bulk?
    – interfect
    Oct 28 '20 at 18:49
  • It may or may not be. It is up to the manufacturer to ensure they are not infringing on existing patents. Oct 28 '20 at 19:09
  • What if I buy all of the ingredients listed on the back of the bottle and compose them myself? Thank you guys so much for your input btw
    – Unique
    Oct 28 '20 at 19:34
  • What if I buy all of the ingredients listed on the back of the bottle and compose them myself? Thank you guys so much for your input btw
    – Unique
    Oct 28 '20 at 19:37
  • Assuming you're not infringing on any patents, I can't see how that would be infringing. The ingredient list is not the same as their recipe. If the extent of your reverse-engineering was solely "what does the bottle say it contains" then it is unlikely you'd be able to replicate the trade dress of their product. Oct 28 '20 at 20:02
0

No -- unless you also violate their trademark or your version infringes on a patent.

0

Is it legal to literally purchase all of the ingredients in a product and make your own product with minor changes?

Yes, this is perfectly legal. For example, there are several different brands of salted peanut butter that have the same ingredients, namely ground peanuts and salt. These brands are not infringing each other's rights.

Not the answer you're looking for? Browse other questions tagged or ask your own question.