Can you use a name brand product for a base in your barbecue sauce to sell to the public without any fines or breaking the laws? 6 Answers as of January 08, 2014

We do not label our sauce BBQ sauce. It's only our name with sauce. Would I be able to go through FDA so its legal?

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Law Office of Robert M. White, PLLC
Law Office of Robert M. White, PLLC | Robert M. White
No, in making your own sauce for public sale, you cannot use a product owned by another without permission. The owner of that product not only has rights in the sauce itself but in the branding associated with it. As such, using it may violate multiple rights that the owner has in the product. With respect to the FDA, their role in marketing of your proposed product is primarily a regulatory one, whereby they regulate the actual manufacture of the product in order to ensure a safe product for the consuming public. In other words, the FDA does not handle the legal aspects associated with trade secrets, trademarks, etc.
Answer Applies to: North Carolina
Replied: 1/8/2014
Barton Barton & Plotkin
Barton Barton & Plotkin | Maurice Ross
No. This is called "reverse passing off" which would violate trademark law-you are claiming that someone else's product is part of your product. Furthermore, you would violate state and federal labeling and regulatory requirements if you failed to identify the source of the "base" in your sauce. There are ways to make products like this legally, but this requires retaining intellectual property/regulatory counsel to work through the various licensing and regulatory issues. You face issues under patent law, trademark law, unfair competition law, FDA law, consumer protection laws, FTC laws and various state and local laws. This is not a product you can make at home or in your garage-and this is not a product you can legally launch and sell without substantial investment in legal services.
Answer Applies to: New York
Replied: 1/6/2014
Mark S. Hubert PC
Mark S. Hubert PC | Mark Hubert
Not sure I understand your question - but I would caution you that as far as I know, all consumable or edible foods sold to the public must be marked as to their contents. In this way anyone who has a severe egg or nut allergy etc would be advised. However this is not my area of law. You need a lawyer that works in FDA regulation.
Answer Applies to: Oregon
Replied: 1/6/2014
Law Office of Kirk Buhler
Law Office of Kirk Buhler | Kirk A Buhler
Generally as long as you purchase the barbecue sauce you will not be violating their rights because the purchase pays for any patents or intellectual property associated with making the product. You would also be able to re-brand the barbecue sauce as long as you do not make negative statements about the base barbecue sauce. If you make the barbecue sauce from scratch you may be in violation of the recipe.
Answer Applies to: California
Replied: 1/3/2014
Microtechnology Law & Analysis | Daniel Flamm
I believe the FDA requires labeling to disclose the specific ingredients (of the types where disclosure is required). You need to research it yourself or hire a consultant with experience or knowledge in FDA certification.
Answer Applies to: California
Replied: 1/3/2014
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    Recipes are often considered trade secrets. Altering a recipe without prior permission of the owner, especially of a name brand product, is impermissible. Labeling such a sauce with your own name, without the owner's prior permission, would also violate trademark law. And the cost of using the name brand product as a base for your product is going to be much, much more expensive than inventing your own sauce base.
    Answer Applies to: Nebraska
    Replied: 1/3/2014
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