Repackaging and Selling Name Brand Cereal

[Confused Develo]

What is the name of your state (only U.S. law)? California, but I will be selling this product to various other states.

I am planning on purchasing name brand cereals and repackaging them into smaller containers that I will sell. I will make it clear to the consumer that they will be purchasing that name brand's cereal through labeling on the package. Strictly from the side of the name brand and ignoring the FDA for now, is there anything that the name brand can do to stop me from doing this? (Perhaps sue me for lowering the quality of their product through my repackaging?). For example, I will be purchasing bulk containers of Fruit Loops and repackaging them into smaller containers. These smaller containers will be clearly labeled to show that the consumer is purchasing Fruit Loops.

If so, would the name brand cereal company be able to press legal action against me if I instead did not make it clear to the consumer that they would be purchasing name brand cereal? (For example, I would market Fruit Loops as 'Fruit Circles' or something of the like).

Thank you very much for your time and help.

 

[Proserpina]

What is the name of your state (only U.S. law)? California, but I will be selling this product to various other states.

I am planning on purchasing name brand cereals and repackaging them into smaller containers that I will sell. I will make it clear to the consumer that they will be purchasing that name brand's cereal through labeling on the package. Strictly from the side of the name brand and ignoring the FDA for now, is there anything that the name brand can do to stop me from doing this? (Perhaps sue me for lowering the quality of their product through my repackaging?). For example, I will be purchasing bulk containers of Fruit Loops and repackaging them into smaller containers. These smaller containers will be clearly labeled to show that the consumer is purchasing Fruit Loops.

If so, would the name brand cereal company be able to press legal action against me if I instead did not make it clear to the consumer that they would be purchasing name brand cereal? (For example, I would market Fruit Loops as 'Fruit Circles' or something of the like).

Thank you very much for your time and help.

The answer hasn't changed from the one you got down the street...

 

[quincy]

What is the name of your state (only U.S. law)? California, but I will be selling this product to various other states.

I am planning on purchasing name brand cereals and repackaging them into smaller containers that I will sell. I will make it clear to the consumer that they will be purchasing that name brand's cereal through labeling on the package. Strictly from the side of the name brand and ignoring the FDA for now, is there anything that the name brand can do to stop me from doing this? (Perhaps sue me for lowering the quality of their product through my repackaging?). For example, I will be purchasing bulk containers of Fruit Loops and repackaging them into smaller containers. These smaller containers will be clearly labeled to show that the consumer is purchasing Fruit Loops.

If so, would the name brand cereal company be able to press legal action against me if I instead did not make it clear to the consumer that they would be purchasing name brand cereal? (For example, I would market Fruit Loops as 'Fruit Circles' or something of the like).

Thank you very much for your time and help.

There is a "first sale doctrine" which allows for the purchaser of legal goods to resell those goods without infringing on the rights of the copyright or trademark holder. Under the first sale doctrine, you can purchase bulk containers of Fruit Loops and you can resell these bulk containers of Fruit Loops.

From the Court in Davidoff & CIE SA v. PLD International Corp, 263 F.3d 1297 (11th Cir 2001): "Resale of genuine trademarked goods generally does not constitute infringement. This is for the simple reason that consumers are not confused as to the origin of the goods: the origin has not changed as a result of the resale ..."

However, there is an exception to the first sale doctrine - the "material difference" exception.

Again from the Davidoff Court: "The caselaw supports the proposition that the resale of a trademarked product that has been altered, resulting in physical differences in the product, can create a likelihood of confusion ..."

If you are going to repackage Fruit Loops and sell them in redesigned containers, you should not use the Fruit Loop trademark unless you are authorized by the trademark holder to do so. You could open yourself up to infringement, dilution and false advertising claims, whether or not consumers believe (or are apt to believe) that you are connected with Fruit Loops/Kellogg's or authorized to sell their cereal.

It is important to remember that when you are dealing with someone else's trademark, you are handling not only a company's identifier but also a company's reputation. Harming either can be extremely costly. I recommend you sit down with an IP attorney in your area to discuss in more detail your plans.

Good luck.

 

[single317dad]

What is the name of your state (only U.S. law)? California, but I will be selling this product to various other states.

I am planning on purchasing name brand cereals and repackaging them into smaller containers that I will sell. I will make it clear to the consumer that they will be purchasing that name brand's cereal through labeling on the package. Strictly from the side of the name brand and ignoring the FDA for now, is there anything that the name brand can do to stop me from doing this? (Perhaps sue me for lowering the quality of their product through my repackaging?). For example, I will be purchasing bulk containers of Fruit Loops and repackaging them into smaller containers. These smaller containers will be clearly labeled to show that the consumer is purchasing Fruit Loops.

If so, would the name brand cereal company be able to press legal action against me if I instead did not make it clear to the consumer that they would be purchasing name brand cereal? (For example, I would market Fruit Loops as 'Fruit Circles' or something of the like).

Thank you very much for your time and help.

In addition to the excellent advice already offered, I'd like to ask you to think critically of your own business plan for a moment. In, for example, a nursing home, the residents there regularly receive small servings of various breakfast cereals. In some of your nicer places, this will be distributed as a retail-packaged single serving box (yes, Kellogg's already thought of this idea). In a lower-budget establishment, one will simply receive a bowl of cereal, or perhaps a small temporary container (such as a Ziploc bag) of cereal. In neither case is the product repackaged, due to several factors:

- Intellectual property ramifications
- Food regulations
- Associated costs

If you think you can meet FDA food (re)packaging guidelines in your garage, you're probably wrong:

http://www.fda.gov/Food/ResourcesForYou/Industry/ucm322302.htm

http://www.fda.gov/Food/ResourcesForYou/Industry/ucm322302.htm

Kellogg's has huge factories that package cereals into various container sizes quickly, efficiently, and lawfully. Still, accidents do happen sometimes, and tainted or subpar food can be distributed.

How will you compete with companies like Kellogg? They're not the only game in town. Why should I buy your product rather than a cheaper similar product from Malt-o-Meal?

If the answer is "because I'm selling you the real thing", then I demand you prove it! In the process of proving to the consumer that your product is genuine Kellogg's cereal, you should arrive at your own conclusion as to why you're infringing on their IP rights.

What will you do when someone becomes ill from your product?

What will you do when a multi-billion-dollar company sues you for trademark infringement?

What will you do when the FDA/OCI pursues criminal charges against you?

 

[Zigner]

The general shape of the cereal is also likely protected by IP law...

 

[LdiJ]

The general shape of the cereal is also likely protected by IP law...

I can guarantee that loops and flakes and rice puffs are not. The more specialized types of shapes might be. Chex comes to mind as a possibility.

 

[quincy]

Here is a link to Kellogg Co. v. National Biscuit Co, 305 US 111 (1938), the US Supreme Court's case discussing the shape of Shredded Wheat:

http://caselaw.findlaw.com/us-supreme-court/305/111.html

 

[LdiJ]

Here is a link to Kellogg Co. v. National Biscuit Co, 305 US 111 (1938), the US Supreme Court's case discussing the shape of Shredded Wheat:

http://caselaw.findlaw.com/us-supreme-court/305/111.html

That was interesting...particularly in how the case went back and forth and back and forth before Kellogg finally won.

 

[quincy]

Perhaps one of the more interesting patent holders is a guy named Guillermo Haro, who holds over 2000 patents on pasta shapes.

Haro's patented pasta shapes can be found most frequently in boxes of Kraft Macaroni and Cheese (the blue box).