Using other companies ingredi[e]nts?

lightspeed

Hi all I've studied tort law last year and studied a little bit of the tort regarding passing off your own product as that of another company. If you were to use a key ingredient of another company's product in making your own product, would this fall under passing off?
I cant see how it would be, but i find it a strange that the above would appear to be legal.

So for example if I bought a bottle of coke at retail price in a shop and then poured it into a bottle of my own with my own label, would this technically be legal?

Assuming that i made no mention of the source company, in this case coca cola.

Of course it would not be a financially viable option or idea, im just curious if such action could in theory be legal?

Procrastastudy

lightspeed wrote: »

Hi all I've studied tort law last year and studied a little bit of the tort regarding passing off your own product as that of another company. If you were to use a key ingredient of another company's product in making your own product, would this fall under passing off?
I cant see how it would be, but i find it a strange that the above would appear to be legal.

So for example if I bought a bottle of coke at retail price in a shop and then poured it into a bottle of my own with my own label, would this technically be legal?

Assuming that i made no mention of the source company, in this case coca cola.

Of course it would not be a financially viable option or idea, im just curious if such action could in theory be legal?

Fellow student here so take this for what its worth...

I'd say the main issue re passing off in that scenario would be pharmaceuticals or similar. While I realise it would more likely be an IP infringement. I cant think of a good example so I'll try Fried Chicken.

Say X sells Chicken with ingredient A. X uses the fact that ingredient A is "toe licking good". If Y come along and start using A and advertise in a very similar manner I think this could be passing off.

Jev/N

You've go to realise that that's just using another company's product, not using it as an ingredient.

Procrastastudy

Jev/N wrote: »

You've go to realise that that's just using another company's product, not using it as an ingredient.

Not if its a bog standard ingredient. Another example would be using Lucky Strikes 'Its roasted'. Thats just a method of production.

Jev/N

Procrastastudy wrote: »

Not if its a bog standard ingredient. Another example would be using Lucky Strikes 'Its roasted'. Thats just a method of production.

The OP was just on about transferring a final product from one packaging to another, even though meaning different

Procrastastudy

Jev/N wrote: »

The OP was just on about transferring a final product from one packaging to another, even though meaning different

I didn't read it like that but it wasn't very clear to be fair.

the_syco

lightspeed wrote: »

im just curious if such action could in theory be legal?

If you added water to coca cola, and created a new flavour, I think you could sell it as a new product, but would not be able to sell it as "coca cola & water" if you didn't have coca colas permission.

krd

Procrastastudy wrote: »

Say X sells Chicken with ingredient A. X uses the fact that ingredient A is "toe licking good". If Y come along and start using A and advertise in a very similar manner I think this could be passing off.

An interesting point about "passing off", the Colonel and his chickens, and Ireland. For years in Ireland, we had no KFC - though we plenty of operations like AFC (Alabama Fried Chicken), incredibly similar artwork, and colours. But of course it was inferior "pass off product".........Anemic Wexford chickens cooked in rendered horse fat. Virtually all Irish takeaways serve their chicken boxes in "pass off" KFC packaging....You wouldn't see that in the ould U, S of A...You'd have a lawyer up your bejayus, before you could say "ann cur eye've a batard sawage wir dat too........I tink I'm gorrna vomit......bad pint.. "

Back in the day......when some hot shot American lawyer called up an Irish business for infringement. The Irish entrepreneur could simply say "listen you f'ing bollox...this is an IRA front operation...And if you don't want to wake up like your man in the Godfather, with both your b****** shoved down your throat, and your wife rode, you'll back the f' off. "...

And it worked...........Murray Hertz..........Murray was an Irish entrepreneur who had seen Hertz' car rental operation and thought it was a great business. So he set up a car rental operation near Dublin Airport - using all Hertz' branding and presentation......And to the unsuspecting foreign eye it looked just like any other Hertz operation you might find near an airport in a civilized country.. .....

Hertz couldn't do anything.........As they were more worried about a visit from "the boys", than tort ....A man in a wig is far easier to deal with, than a man in a balaclava.


Murray, eventually sold his Hertz operation to Hertz.

castie

krd wrote: »

An interesting point about "passing off", the Colonel and his chickens, and Ireland. For years in Ireland, we had no KFC - though we plenty of operations like AFC (Alabama Fried Chicken), incredibly similar artwork, and colours. But of course it was inferior "pass off product".........Anemic Wexford chickens cooked in rendered horse fat. Virtually all Irish takeaways serve their chicken boxes in "pass off" KFC packaging....You wouldn't see that in the ould U, S of A...You'd have a lawyer up your bejayus, before you could say "ann cur eye've a batard sawage wir dat too........I tink I'm gorrna vomit......bad pint.. "

Back in the day......when some hot shot American lawyer called up an Irish business for infringement. The Irish entrepreneur could simply say "listen you f'ing bollox...this is an IRA front operation...And if you don't want to wake up like your man in the Godfather, with both your b****** shoved down your throat, and your wife rode, you'll back the f' off. "...

And it worked...........Murray Hertz..........Murray was an Irish entrepreneur who had seen Hertz' car rental operation and thought it was a great business. So he set up a car rental operation near Dublin Airport - using all Hertz' branding and presentation......And to the unsuspecting foreign eye it looked just like any other Hertz operation you might find near an airport in a civilized country.. .....

Hertz couldn't do anything.........As they were more worried about a visit from "the boys", than tort ....A man in a wig is far easier to deal with, than a man in a balaclava.


Murray, eventually sold his Hertz operation to Hertz.

The internet disagrees with you...

Peregrinus

Yes, complete urban legend. Hertz entered the Irish market by acquring the long-established Dan Ryan Car Rentals.

There never was a "Murray Hertz" in the car business in Ireland; there was Murray's Rent-a-Car, founded and for a long time run by Harry Murray. At one time it did hold a Hertz franchise, but at other times it was Europcar franchise and then a Sixt franchise before going into receivership about a year ago. I never heard any suggestion that Murray traded under the Hertz name before he got his franchise, or that he held himself out as having republican connections in order to get it.

Indricotherium

the_syco wrote: »

If you added water to coca cola, and created a new flavour, I think you could sell it as a new product, but would not be able to sell it as "coca cola & water" if you didn't have coca colas permission.

Have you ever been in a pub?

Vodka and coke please!

nuac

krd wrote: »

An interesting point about "passing off", the Colonel and his chickens, and Ireland. For years in Ireland, we had no KFC - though we plenty of operations like AFC (Alabama Fried Chicken), incredibly similar artwork, and colours. But of course it was inferior "pass off product".........Anemic Wexford chickens cooked in rendered horse fat. Virtually all Irish takeaways serve their chicken boxes in "pass off" KFC packaging....You wouldn't see that in the ould U, S of A...You'd have a lawyer up your bejayus, before you could say "ann cur eye've a batard sawage wir dat too........I tink I'm gorrna vomit......bad pint.. "

Back in the day......when some hot shot American lawyer called up an Irish business for infringement. The Irish entrepreneur could simply say "listen you f'ing bollox...this is an IRA front operation...And if you don't want to wake up like your man in the Godfather, with both your b****** shoved down your throat, and your wife rode, you'll back the f' off. "...

And it worked...........Murray Hertz..........Murray was an Irish entrepreneur who had seen Hertz' car rental operation and thought it was a great business. So he set up a car rental operation near Dublin Airport - using all Hertz' branding and presentation......And to the unsuspecting foreign eye it looked just like any other Hertz operation you might find near an airport in a civilized country.. .....

Hertz couldn't do anything.........As they were more worried about a visit from "the boys", than tort ....A man in a wig is far easier to deal with, than a man in a balaclava.


Murray, eventually sold his Hertz operation to Hertz.

All of this ( re Murray-Hertz ) is untrue, and an irresponsible statement

krd

nuac wrote: »

All of this ( re Murray-Hertz ) is untrue, and an irresponsible statement

Maybe it's true, maybe it's untrue.


My source for the story is a little dubious. It's in Howard Marks' biography Mr. Nice.

So, if anyone wants to sue, sue Mr. Nice, and not me.

lightspeed

Could it be more of an issue in traceability of the ingredients?

Im not fully sure of the requirements set out by the food and safety authority but i would imagine you would have to be able to show how each of your ingredients were sourced.

So for example if I was to use the sauce of another company and mixed it with my own ingrediants, i would i assume i would have to be able to prove where all the ingredients came from, which could include preservatives and colourings and such. Would it be enough to just list all the ingrediants on the product and just advise the Food Safety Authority of the conpany that provided the relevant ingredients?

If such actions were legal, I would assume that if i wanted to make a strawberry flavour versions of Coca Cola (Probably would taste fairly awful) and put my own label on it, i would be legally able to do so?

I reckon if i contacted Coca Cola, they would not approve but would they have a legal claim If i had completely different name, packaging and made no reference to Coca Cola?

Peregrinus

krd wrote: »

Maybe it's true, maybe it's untrue.


My source for the story is a little dubious. It's in Howard Marks' biography Mr. Nice.

So, if anyone wants to sue, sue Mr. Nice, and not me.

We'll sue Mr. Nice. We'll just deride you for taking anything he says remotely seriously!

krd

Peregrinus wrote: »

We'll sue Mr. Nice. We'll just deride you for taking anything he says remotely seriously!

It wouldn't be the first time I've looked like a complete and utter idiot.

I think that book is full yarns. There's plenty of stuff on Ireland in it, but any time I've tried to look up some of the wilder stories and characters, I haven't been able to find much.

Though, the stuff about KFC "pass off" is true. I've seen the Colonel's face on the outside of chippers, that had nothing to do with the Colonel.

Icepick

krd wrote: »

It wouldn't be the first time I've looked like a complete and utter idiot.

word

AlarmBelle

krd wrote: »

Maybe it's true, maybe it's untrue.


My source for the story is a little dubious. It's in Howard Marks' biography Mr. Nice.

So, if anyone wants to sue, sue Mr. Nice, and not me.

putting it mildly

AlarmBelle

lightspeed wrote: »

Hi all I've studied tort law last year and studied a little bit of the tort regarding passing off your own product as that of another company. If you were to use a key ingredient of another company's product in making your own product, would this fall under passing off?
I cant see how it would be, but i find it a strange that the above would appear to be legal.

So for example if I bought a bottle of coke at retail price in a shop and then poured it into a bottle of my own with my own label, would this technically be legal?

Assuming that i made no mention of the source company, in this case coca cola.

Of course it would not be a financially viable option or idea, im just curious if such action could in theory be legal?

how could they prove it was coke without giving away the secret recipe?

lightspeed

thats actually an interesting point. I suppose they may be in a position where they would be forced to reveal such valuable trade secrets to prove that the recipe has in fact been cloned.

krd

lightspeed wrote: »

So for example if I bought a bottle of coke at retail price in a shop and then poured it into a bottle of my own with my own label, would this technically be legal?

I think you have a complete misunderstanding of what "pass off" is.

"Pass off", is close to counterfeiting. Say if you take a bottle of Calvin Klein parfume.

And what you do is copy the colours on the label, the dimensions of the box, and then label your product (which is some cats piss and white spirit), with the same font as on the Calvin Klein bottle - are you following me.

Except, instead of spelling Calvin Klein, with a CK....You spell it Kalvin Clein.......Then that's passing off.

If you spell it Calvin Klein, then you're counterfeiting.

Now, you'll notice, every supermarket has it's own brand Cola. You'll notice, that none use colours of fonts close to the Coca Cola labeling, because Coca Cola would be on their balls like a starving dog for "pass off" if they tried.

Taking Coca Kola, and rebottling it with a completely different label, is not passing off - but say if you took keep Russian vodka and put it in bottles labeled "Absolute Vodka", you would be passing off, if you put it in labels that said "Absolut Vodka", you would be counterfeiting.

AlarmBelle

krd wrote: »

Now, you'll notice, every supermarket has it's own brand Cola. You'll notice, that none use colours of fonts close to the Coca Cola labeling, because Coca Cola would be on their balls like a starving dog for "pass off" if they tried.
.

That s not really true. They do use similar colours . In Aldi diet cola the word diet is exactly the same font as the real thing. it is black too as is coke. the word cola is in red ,a different font to the real thing but not much smaller. Tesco coke is not a world away either

http://www.hotukdeals.com/deals/tesco-coke-diet-coke-coke-zero-three-776310

most colas have red in the colour of the can

krd

AlarmBelle wrote: »

That s not really true. They do use similar colours . In Aldi diet cola the word diet is exactly the same font as the real thing. it is black too as is coke. the word cola is in red ,a different font to the real thing but not much smaller. Tesco coke is not a world away either

The general test of "pass off" is if the packaging would lead a reasonably intelligent person to confuse the "pass off" product with the real thing.

Are you reasonably intelligent?

AlarmBelle

krd wrote: »

The general test of "pass off" is if the packaging would lead a reasonably intelligent person to confuse the "pass off" product with the real thing.

Are you reasonably intelligent?

i was responding to your comment that coke would sue even if there was a slight resemblence but you do not seem to have the intelligence to see that

lightspeed

ok perhaps it would not be passing off but would it be theft of intellectual property?

Thats an area I'm not familiar with but surely it would not be passing off if i had a completely different name, label and even composition of another company's product.

For example lets say I used a powder such as Kenco coffee and made my own flavour coffee bar, slapped a label with a random made up name.

For example Kenco smooth white coffee has the following in it:

Kenco Smooth White Coffee
Ingredients: Glucose Syrup, Instant Coffee (31%), Vegetable Oil, Milk Protein, Emulsifier (E471, E472), Stabiliser (E340, E452), Anti-caking agent (E551).
CONTAINS: MILK

As taken from : http://www.kencoprofessional.co.uk/kencoprofessional/page?siteid=kencoprofessional-prd&locale=uken1&PagecRef=699

If i just threw the above ingrediants on my label in the correct order along with whatever other ingrediants I have of my own and made a chocolate energy bar, with my own name, would it be legal?

Again just to clarify, in the above case, I have no interest in making my product look like someone elses or having in anyway a remotely similar name to it so i cant see how it would be a case of passng off.

Jev/N

lightspeed wrote: »

ok perhaps it would not be passing off but would it be theft of intellectual property?

Thats an area I'm not familiar with but surely it would not be passing off if i had a completely different name, label and even composition of another company's product.

For example lets say I used a powder such as Kenco coffee and made my own flavour coffee bar, slapped a label with a random made up name.

For example Kenco smooth white coffee has the following in it:

Kenco Smooth White Coffee
Ingredients: Glucose Syrup, Instant Coffee (31%), Vegetable Oil, Milk Protein, Emulsifier (E471, E472), Stabiliser (E340, E452), Anti-caking agent (E551).
CONTAINS: MILK

As taken from : http://www.kencoprofessional.co.uk/kencoprofessional/page?siteid=kencoprofessional-prd&locale=uken1&PagecRef=699

If i just threw the above ingrediants on my label in the correct order along with whatever other ingrediants I have of my own and made a chocolate energy bar, with my own name, would it be legal?

Again just to clarify, in the above case, I have no interest in making my product look like someone elses or having in anyway a remotely similar name to it so i cant see how it would be a case of passng off.

I think I understand what you're getting at now.

First, ingredients are listed by volume so, if you are to include the list on the Kenco package, it would be altered from the above, depending on the amount of powder used and the other ingredients utilised to make the bar.

It is theorcially possible to use it in this vein, assuming no one knew, as a shortcut to final production but it may not be the cheapest option.

I believe I have seen trademarked ingredients listed on another product before but I can't think of anything off hand.

Legally, it's not so straightforward IMO. I don't know what the story would be in using the product as ingredient, whether it be a matter of IP, contract (retail, wholesale) or otherwise but I'd certainly say the producers lawyers would think of a novel way of tackling the issue if they found out and if there wasn't a standard approach for this kind of problem.