Is it legal to use ingredients from an existing product? For example, imagine I love Bio-Oil and I decide I want to make something similar, would it be legal or illegal if I used every ingredient in it, then I add two other ingredients that are not included? Would Bio-Oil be able to sue me with the claim that my product consisted of most of their ingredients, but not exactly the same?

Basically, the ingredients are listed on the packaging, but the same ingredients are ingredients that you find commonly used in that type of product. My thought is, no one really has ownership of ingredients (e.g., body oils often use the same standard ingredients), so how can they suspect I was copying them?


That depends on how you get the ingredient list.

  • If the list is published and not protected by a patent, then anyone is free to use it in making the same or a similar product.

  • If the product is patented and the ingredient list is covered by the patent, and the patent is currently in force, then making a similar product would probably be patent infringement, and the patent holder could sue and collect damages.

  • If the list is secret, and has been protected as a Trade Secret, and if the would-be imitator gets the formula improperly, then the owner of the formula would have valid grounds for a trade secret lawsuit and to collect damages in that suit. Improper means would include breaking into the owner's files, or inducing an employee or contractor to violate a confidentiality agreement. But analyzing the product and figuring out its composition, a form of reverse engineering would be perfectly proper, and would give the formula owner no claim. Similarly, if the owner was careless and allowed the formula to be disclosed, the imitator would have done nothing improper.

So the outcome depends on the details of facts not stated in the question.

  • 2
    Caveat on 3.: Ingredients in medicine, food and some other products are required to be listed
    – Trish
    Mar 10 at 8:22
  • 1
    @Trish, yes, but usually not at the level of detail that an imitator would want. Any info that is required to be listed is not a trade secret, and may be used legally. To be a trade secret, the owner must have taken "reasonable measures" to keep it secret. Mar 10 at 14:23

The answer by @DavidSiegel is a sound one as far is it goes. I will add just a couple of points for clarity.

It is worth recognizing, as background, that under U.S. intellectual property laws, at least, recipes for food for human consumption cannot be copyrighted or patented, and as @Trish notes in a comment, the ingredients have to be listed in packaged foods sold commercially (although some of the disclosures can be vague such as "natural flavors" and the exact quantities do not have to be disclosed, just their relative amounts vis-a-vis each other).

Other products, such as medicines, are routinely patented, and the patent process requires full disclosure of what goes into it, so disclosure of the ingredients while the patent is in force doesn't allow someone else to imitate it without being infringing, and after the patent expires, anyone with skill in the relevant art and sufficient resources has the ability (by virtue of how the system is intentionally designed) to imitate it.

For most other products, a complete disclosure of ingredients is not required, even if specific ingredients must be disclosed (e.g. whether it contains certain toxic materials).

Also, if something is protected merely as a trade secret, reverse engineering of the recipe is a lawful way to determine the amount of each ingredient that goes into the recipe.

  • IIRC Medicine patents are legally non-trivial. A common way to patent a medicine is to patent its production process, because such a production process is without doubt a valid subject for a patent. This process can involve the chemical and biological steps. However, with patents the process is protected, not the end result, and another process with the same end result does not violate the first patent.
    – MSalters
    Mar 11 at 12:06

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