snickers imitation

[McCloud]

Hey guys,

recently I've come across a bar that looks exactly like Snickers, tastes exactly like Snickers, weighs the same, has the same ingredients and almost identical macros.
The only difference is the company, name of the bar and packaging. And of course, it's like 60% cheaper.

Now, is this not interfering with copyright? Would Mars (the company that makes Snickers) not be able to sue the company that makes these?

 

[Zigner]

Sorry, US law only. And we don't do hypotheticals. Since this case has absolutely NOTHING to do with you, it's a hypothetical.

 

[STEPHAN]

And ... How do you know that the lawyers are no all over it?

 

[OHRoadwarrior]

The proportion of ingredients is likely slightly different. That distinguishes the formula. It does not pro-port in advertising to be like a snickers. I do not see you have given any info that appears to be in violation of the law.

 

[quincy]

Hey guys,

recently I've come across a bar that looks exactly like Snickers, tastes exactly like Snickers, weighs the same, has the same ingredients and almost identical macros.
The only difference is the company, name of the bar and packaging. And of course, it's like 60% cheaper.

Now, is this not interfering with copyright? Would Mars (the company that makes Snickers) not be able to sue the company that makes these?

Mars is unlikely to have a suit against the makers of a candy bar that tastes and looks the same as Snickers. If the name of the candy bar or the packaging of the candy bar are confusingly similar to the Snickers bar, however, so that a consumer is likely to confuse one candy bar with the other, that could give rise to a lawsuit.

The same appearance of the bars in the case of a Snickers bar (probably) wouldn't support a suit because there is nothing protectable about the candy bar's looks, but Hershey's has gained trademark/trade dress protection for its distinctive "equally-sized recessed panels" and raised borders of the bar - so it is not impossible that an infringement suit could arise over appearance.

Hershey's has sued other (mostly foreign) candy makers over their confusingly similar packaging and candy names, halting the sale of the look-alikes in the US, and Lindt was able to stop the sale of chocolate bunnies by a competitor because the packaging of the chocolate bunnies was confusingly similar to the packaging of the Lindt bunnies.

Hershey's filed an interesting lawsuit last year in Colorado against a manufacturer of marijuana bars (Tincture Belle), claiming the names and appearance of the marijuana bars could confuse consumers into thinking they were Hershey products.

Ingredients of a candy bar could give rise to a trade secret action, if the recipe for the candy bar is a trade secret that was disclosed, stolen or secretly sold.

BUT, McCloud, since this forum DOES handle US law questions only (and does not generally entertain hypothetical questions), you should provide your state name and indicate whether this is a real legal matter that you are involved in or whether your question is one posed out of curiosity only - if you have not had your questions answered already.

 

[justalayman]

And if ORW didn't figure it out from there, merely using the same recipe, even if identical, would not allow a legal claim unless as quincy mentioned, it was based on an ill gotten trade secret.

Formulas are not in themselves protected. That is why companies like kfc and coca cola go to such great lengths to keep their recipes secret.

 

[McCloud]

setting up business outside of US

well, recently I was looking into copyright in general, that's why I noticed this particular issue.

I had actually two ideas for starting a small business in my country..
1. printing T-shirts, using slightly adapted designs from other countries.

I am not sure if the Bern convention would apply here. Would the creator of the original piece be able to sue me outside of US? If someone in my country recognized that the work is an imitation, would they be able to contact the appropriate copyright institution.

Also, I think it's not very accurate to compare a t-shirt design with a food product - in that case, I would only be required to modify the design slightly (ie change color tone) - which I know is not the case.

2. selling products (a brand of ice cream, that is not sold in my country)
Do I need to be an authorized re-seller of that particular company? Or can I simply run a small local shop with few freezers and sell what I want?

I will edit the title to reflect my concern better. These questions are now directly related to me. I appreciate that they are probably not formulated professionally and are pretty straight to the point.
I am not educated in law, business or copyright whatsoever, that's why I am asking for your help this way.
If my question violates the rules of the forum in any way, let me know and I will be happy to edit it.

I am also aware of the fact, that these might not be yes/no answer questions, but if you could give me hints or starting points, I can do some research and educate myself further on this topic.

Thanks a lot for help.

 

[quincy]

well, recently I was looking into copyright in general, that's why I noticed this particular issue.

I had actually two ideas for starting a small business in my country..
1. printing T-shirts, using slightly adapted designs from other countries.

I am not sure if the Bern convention would apply here. Would the creator of the original piece be able to sue me outside of US? If someone in my country recognized that the work is an imitation, would they be able to contact the appropriate copyright institution.

Also, I think it's not very accurate to compare a t-shirt design with a food product - in that case, I would only be required to modify the design slightly (ie change color tone) - which I know is not the case.

2. selling products (a brand of ice cream, that is not sold in my country)
Do I need to be an authorized re-seller of that particular company? Or can I simply run a small local shop with few freezers and sell what I want?

I will edit the title to reflect my concern better. These questions are now directly related to me. I appreciate that they are probably not formulated professionally and are pretty straight to the point.
I am not educated in law, business or copyright whatsoever, that's why I am asking for your help this way.
If my question violates the rules of the forum in any way, let me know and I will be happy to edit it.

I am also aware of the fact, that these might not be yes/no answer questions, but if you could give me hints or starting points, I can do some research and educate myself further on this topic.

Thanks a lot for help.

What is the name of your state or, if not in the US, what is the name of your country?

For the candy bar question you asked, trademark law is what you should have been looking at, not copyright law. Your questions now cover both copyright law and trademark law and I see no connection at all to your question about candy bars.

A "slightly adapted design" of a copyrighted work, or a modification of a copyrighted design, is also called a "derivative" and the right to create derivatives is held exclusively by the copyright holder. Your tee-shirts would (more than likely) infringe on the copyright holder's design and you could be sued in whatever country you live in under that country's copyright laws.

To sell products manufactured by a company, you would generally need to be a licensed retailer of those goods.

I suggest you sit down with an attorney in whatever area of the world you happen to reside for a review of the facts of whatever it is you are thinking of becoming involved in. Whenever you are thinking of using another's rights-protected property, you have to consider the legalities.

For US laws, following are links to the United States Patent and Trademark Office and to the US Copyright Office, but you will need to be mostly concerned with the laws of your country as they apply to your concerns because if/when you are sued, it will be in your country's courts and under your country's laws.

US Patent and Trademark Office: http://www.uspto.gov
US Copyright Office: http://www.copyright.gov

Good luck.

 

[LdiJ]

Its also equally possible that Mars sells the candy to the other company under a private label, therefore no infringement at all.

 

[quincy]

Its also equally possible that Mars sells the candy to the other company under a private label, therefore no infringement at all.

Anything is possible.

That said, Mars, Hershey, Nestlé and Kraft account for over half the chocolate and candy market in the US. While these companies will sell, and have sold, some of their candy trademarks to other candy makers in the past - Chuckles and Jujyfruits, for example, were once Hershey brands and are now owned by Ferrara Candy - these companies do not (to my knowledge) sell their candy for private labeling.

From the Hershey Company website: "Another threat in the market is the increasing penetration of private labels, whose products emphasis [sic] greater customization at a lower price. Hershey has to be prepared for adopting competitive pricing strategies as the private labels continue to gain a hold in the market."

Making candy for private labels, in other words, is generally left to smaller candy companies. The private label brands are direct competitors of the major candy brands made by Mars, Hershey, Nestlé and Kraft.

 

[LdiJ]

Anything is possible.

That said, Mars, Hershey, Nestlé and Kraft account for over half the chocolate and candy market in the US. While these companies will sell, and have sold, some of their candy trademarks to other candy makers in the past - Chuckles and Jujyfruits, for example, were once Hershey brands and are now owned by Ferrara Candy - these companies do not (to my knowledge) sell their candy for private labeling.

From the Hershey Company website: "Another threat in the market is the increasing penetration of private labels, whose products emphasis [sic] greater customization at a lower price. Hershey has to be prepared for adopting competitive pricing strategies as the private labels continue to gain a hold in the market."

Making candy for private labels, in other words, is generally left to smaller candy companies. The private label brands are direct competitors of the major candy brands made by Mars, Hershey, Nestlé and Kraft.

Don't think that large companies like those do not sell batches of products that don't quite pass quality control, under different labels. I am not suggesting that they would sell unsafe or unwholesome products under a different label but rather than discarding products that don't quite have the correct mix of ingredients, believe me they would likely be relabeled.

 

[quincy]

Don't think that large companies like those do not sell batches of products that don't quite pass quality control, under different labels. I am not suggesting that they would sell unsafe or unwholesome products under a different label but rather than discarding products that don't quite have the correct mix of ingredients, believe me they would likely be relabeled.

Where did you get this information? Can you provide a link. I haven't run across anything that indicates this happens.

The "inferior" candy marketed under a different label would be directly competing with the companies' name brand candy, so it does not seem to be in their best interest to do this. And they would not want to have their names connected with inferior candy because that can affect their whole companies' reputation.

 

[LdiJ]

Where did you get this information? Can you provide a link. I haven't run across anything that indicates this happens.

The "inferior" candy marketed under a different label would be directly competing with the companies' name brand candy, so it does not seem to be in their best interest to do this. And they would not want to have their names connected with inferior candy because that can affect their whole companies' reputation.

My comments do not come from research, they come from personal knowledge, and from my educational background. While it seems counterintuitive to you (and I totally understand that) the costs of discarding nonconforming batches of products, on the scale of large companies, is far greater than the potential competition of alternative label products. Where do you think that the unrecognizable brands sold in stores like Aldi's come from? Or the unrecognizable brands sold in dollar stores? The scale is too large for them to come from small manufacturers. On top of that, where do you think that Walmart's "Great Value" products come from? On the scale that they sell, no one but a huge manufacturer, on a private label basis, could possibly accommodate their needs.

So, there are two distinctly separate issues. Alternatively labeling for products that don't quite pass quality control, and private labeling for huge production.

The alternative label products do not compete with the brand names. The people who can afford the brand name products simply don't buy the alternative label products. They don't even shop at the stores who sell the alternative label products. Most of them will never know that there is a product (often temporarily) available that seems just as good as what they normally buy.

And as far as the generic brands are concerned that are sold by big retailers...that is simply economies of scale...and generally both the brand name product and the private label product are both available at the big retailer.

 

[justalayman]

well, there is an ice cream sandwich plant that a friend worked at that has a surprisingly large amount of defective product. They toss it all (except what the employees take but hey, after awhile you do get tired of ice cream).

While it seems counterintuitive to you (and I totally understand that) the costs of discarding nonconforming batches of products, on the scale of large companies, is far greater than the potential competition of alternative label products.

it is often not practical to sell the product to some entity in many cases. They would have to transfer the product to the buyer (or the buyer would have to pick up). Until that happened they would have to store the product in unpackaged form. Food stuffs have a short shelf life, especially if not packaged. The cost of storing a product they are going to get minimal compensation for is what doesn't make sense.

and of course, whomever purchases it would have to have the packaging facility available to package. Do you thing all those companies have idle plants just waiting for defective product (of some unknown quantity at random times) from some name brand packager?

On top of that, where do you think that Walmart's "Great Value" products come from? On the scale that they sell, no one but a huge manufacturer, on a private label basis, could possibly accommodate their needs.

yes, a big company that packages private label products. What does that have to do with companies that package the name brand product? There can be two separate companies.



You seem to be confusing top quality product that has become defective in some way and product of lesser quality. Aldi's and others purchase product that may not meet the standards of the big name brand companies. It has nothing to do with defective product from the higher quality production line.

 

[quincy]

My comments do not come from research, they come from personal knowledge, and from my educational background. While it seems counterintuitive to you (and I totally understand that) the costs of discarding nonconforming batches of products, on the scale of large companies, is far greater than the potential competition of alternative label products. Where do you think that the unrecognizable brands sold in stores like Aldi's come from? Or the unrecognizable brands sold in dollar stores? The scale is too large for them to come from small manufacturers. On top of that, where do you think that Walmart's "Great Value" products come from? On the scale that they sell, no one but a huge manufacturer, on a private label basis, could possibly accommodate their needs.

So, there are two distinctly separate issues. Alternatively labeling for products that don't quite pass quality control, and private labeling for huge production.

The alternative label products do not compete with the brand names. The people who can afford the brand name products simply don't buy the alternative label products. They don't even shop at the stores who sell the alternative label products. Most of them will never know that there is a product (often temporarily) available that seems just as good as what they normally buy.

And as far as the generic brands are concerned that are sold by big retailers...that is simply economies of scale...and generally both the brand name product and the private label product are both available at the big retailer.

I really wish your comments had been based on research.

Although I honestly respect your educational background and your personal knowledge, LdiJ, research would have shown you that the major candy companies are not the candy suppliers for private label candy. It is not in the best interest of these companies to market candy that competes with their name brands nor is it in their best interest to market candy that does not meet their quality standards. These major companies have brands and reputations that they have nurtured and protected for years.

Private label candy brands have increased their sales in the US in recent years, to the detriment of Mars and Hershey and Nestlé and Kraft. These private label brands have cut into the major brands' market share. This is not the result of the major companies competing with themselves by marketing private label brands alongside their name brands.

The candy for these private labels are supplied by a variety of candy companies throughout the country. These are the candies that you often will find in the Costco's and Walmarts and Walgreens and CVSs across the country. Here is a link with a list of many of the private label candy manufacturers. The list was published by the Sweets and Snacks Expo that will be held in May of this year:
http://www.sweetsandsnacks.com/private_label_mfg_list.cfm

I agree with you that the scale is large. So is the number of candy companies.