I want to create a 2-part skin care product which uses Oatmeal Soap and Aloe Vera gel.
I want to buy the oatmeal soap in bars, melt it down and turn it into liquid soap, put it in bottles with my own label on it. Then take aloe vera gel from another company and put it in my own bottles with my own label on them. Then package them and distribute them together as part of my 2-part skin care product.
How do I go about doing this legally and without getting permission from the companies? Do I have to put on the bottles the name of the original product?
Can I simply put on the back of the box "made from Aloe Vera gel by Company X" and "liquid oatmeal soap made from Company Z". What do you I have to do in order to avoid "infringment", "passing off", and "reverse passing off"
Also, your proposal to identify the companies or trademarks of the products that you combine will be unacceptable because it creates the impression among consumers that your product is endorsed by or affilaited with these products.
The only way to pursue your plan is to obtain permission from the manufactuers of the products that you purchase to convert them into your product in this manner Failure to obtain permission can be a fatal and costly mistake. One of the main jobs of intellectual property counsel is to help people in your situation obtain the IP rights they need to make their products without danger of law suits. You need to retain IP counsel to review the detailed facts and circumstances and obtain the licenses and permissions you need. If you do not obtain the permissions and licenses you need, then it is foolish to launch the product because you will inevitably face a costly law suit.
Apparently there is some disagreement on this issue, but in my opinion it is fine to take existing branded products and use them in your own, new branded product without getting any permissions. Just about any food product you buy is going to be branded. If you bake chocolate chip cookies and sell them, there is no need to identify the trademark under which each ingredient was sold (Hershey's chocolate chips, Eggland's Best eggs, etc.).
Just be sure to avoid any mention or association with the other companies, not to use any text, graphics, or other content from those companies, not to violate any agreements you might enter into, and not to infringe any patents. If I had to guess, I would expect there are few if any active patents for aloe vera gel or oatmeal soap, but you won't know unless you do a search. If you are uncertain about any of these things, consult an attorney.
I agree with Attorney Hyra. While it is unlawful to buy Branded Product X, remove its branding, and then either re-sell it unbranded or with different branding [all of which is "reverse passing off"] this is not what you intend to do.
The product you will be selling is not un-or-rebranded Product X but rather your own Branded Product Y [the oatmeal soap / aloe vera combination] and Branded Product Y is neither the original hard, oatmeal soap nor the original aloe vera -- and it does not look or feel or like either. I see nothing unlawful about buying those two products and manipulating and combining them however you like to come up a new, branded product.
Now, you still have buy those two products. IF when you buy those products you sign a contract that restricts how you sell them or what you physically do with them then, and only then, must you worry about breaching some contractual right imposed by the manufacturers on buyers of the products.
Also, though it's unlikely, there may be one or more currently-in-force patents that cover an oatmeal soap / aloe vera combination product. That combination has been around for a very long time, however, so I doubt it. But maybe. ANYTIME a person introduces a new product into the marketplace it is a very good idea to search currently-in-force patents to see if the product is already claimed in a patent owned by someone else. So have a patent attorney do a quick "freedom to operate" search.
Lastly, your own branding will be very important -- as will your creation of a company to make a go of this business. Visit amazon.com, query its books database for "starting a business," and buy and read a few. Then visit with a local business attorney to help set up your company -- who will then bring on board an intellectual property attorney to clear and protect your branding and pass on the patent freedom to operate question and a food and drug regulatory attorney to make sure your product is made and advertised in compliance with the Food and Drug laws and regulations. Good luck.
The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
There is nothing wrong with this. Reverse passing off is the issue here as you indicated. That only comes into play when you outright rebrand someone else's product without changing it in any way. It's a very rare fact scenario in case law.
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