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socrateaser
socrateaser, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 32925
Experience:  Retired (mostly)
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I am interested in putting together a cosmetic recipe book

Resolved Question:

I am interested in putting together a cosmetic recipe book highlighting recipes and directions that I have either found on the internet or made up myself based on the ingredients of a well know cosmetic company. I would like to be able to sell this book via the internet, either as an ebook or some other mechanism which provides some sort of copying protection. My question is, am I in any way infringing on the cosmetic company in question by developing a recipe based on the ingredients they have published with their products (as is required by law). And can I refer to the name of their product, i.e. Ruth's Rosy Rub in my attempt to duplicate their product?
Submitted: 9 months ago.
Category: Intellectual Property Law
Expert:  socrateaser replied 9 months ago.
My question is, am I in any way infringing on the cosmetic company in question by developing a recipe based on the ingredients they have published with their products (as is required by law)?

A: No. A recipe is not susceptible to copyright, because it is a "process." Only the exact text of the recipe can be copyright registered, because the text is a "fixed expression of a creative idea." which is the subject of copyright. A recipe would have to be patented. And, most recipe's cannot be patented, because they are not sufficiently unique and nonobvious to sustain a patent application.

So, you are not at risk here, unless you were to copy verbatim, the cosmetic company's recipe, as the company has published it (if it has published it, of course -- if not, then there is no copyright to infringe).

And can I refer to the name of their product, i.e. Ruth's Rosy Rub in my attempt to duplicate their product?

A: This would be trademark or trade dress infringement, because you are causing confusion in the mind of an ordinary consumer as to the source or affiliation of a product or service. This could get you into trouble.

Hope this helps.
Customer: replied 9 months ago.

Thanks,


I would also like to confirm your issue of trademark or trade dress infringement.


 


If I compile and then modify existing recipes for body products from online blogs and websites and/or create recipes of my own using the ingredients list from a commercial company I understand that this is legal. Correct? I realize that I cannot call a product the same name as the commercial producer, i.e. Ruth's Rosy Rub, however, could I call it Ruth's Rosy Rub Replica or Replica of Ruth's rosy Rub? I have seen some knock off perfume companies who call their products " Compare to Estee Lauder's Beautiful Cologne" in the name of their duplicate product. I don't want to infringe on their trade name of their product understanding that there could be confusion, but if I clearly state that is is a representation of the original commercial product, does that suffice?

Expert:  socrateaser replied 9 months ago.
If I compile and then modify existing recipes for body products from online blogs and websites and/or create recipes of my own using the ingredients list from a commercial company I understand that this is legal. Correct?

A: Correct.

I realize that I cannot call a product the same name as the commercial producer, i.e. Ruth's Rosy Rub, however, could I call it Ruth's Rosy Rub Replica or Replica of Ruth's rosy Rub?

A: Could you call a soft drink of your manufacture, My CocaCola replica?

No, you would be sued into oblivion in about 24 hours after CocaCola determined you were "diluting" CocaCola's good will. Now, with a less famous mark, the risk decreases -- sometimes so much that no risk exists. But, if your target product is Revlon, Maybelline or Covergirl, you are going to be in a lot of legal difficulty.

I have seen some knock off perfume companies who call their products " Compare to XXXXX's Beautiful Cologne" in the name of their duplicate product. I don't want to infringe on their trade name of their product understanding that there could be confusion, but if I clearly state that is is a representation of the original commercial product, does that suffice?

A: A statement such as "compare to [manufacturer name] is called "nominative" use. That is you are using the name to identify a manufacturer by its name, rather than using the manufacturer's name to identify a product. Conversely, saying "Covergirl Replica," is a flat trademark infringement, because you are marking a product using someone else's trademark.

Hope this helps.
Customer: replied 9 months ago.

Okay, I think I understand. Here is one last question, in order to make this theoretical situation more clear, let me clarify my scenario a bit. I have a compilation of ingredients for different products from the product sheets themselves from a company called Lush. They are wildly popular and quite frankly very easy (in many cases) to replicate at home. Therefore, I wanted to put together a small home made cosmetics book, with many of my interpretations of some of Lush's products. For example, I have developed a very good body bar which uses the same ingredients and appears and smells the same as Lush's body bar called "Buffy". Clearly I want to be able to use the words Lush and Buffy somewhere in the text of my recipe in order for the user to understand what product this recipe will be like. Can you tell me how to phrase this such that it is explicitly clear that it is my recipe interpretation of the published ingredients which I created, or that has been created on blogs of other folks websites, is similar to the Lush's "Buffy Bar"?


 


Thanks, XXXXX XXXXX been really helpful

Customer: replied 9 months ago.

Thanks for the information. With regards XXXXX XXXXX trademark or trade dress infringement, if I have a recipe in my book, which I have compiled and modified from other blog websites or created myself using the ingredients that are the label of the product, from this cosmetic company, can I call this recipe "Ruth's Rosie Rub" Replica? I see this often for knock off or simulations of cologne. Such as, "compare to Estee Lauder "Beautiful" cologne".


 

Expert:  socrateaser replied 9 months ago.

What you are requesting is an iron-clad protective device. Other than a license from the manufacturer, there is no such mechanism. The larger your competitor, the more likely you will be sued, because large, famous brands usually have several dozen employees who do nothing but read and search for infringing advertisements in the international marketplace for their products and services.

It is beyond dispute that "parody," and "editorial commentary," about a product is "fair use." and not the subject of any legal action -- as long as the use is not tied to directly to a commercial use.

So, perhaps if you were writing a treatise on how cosmetics are made, for the use of chemists, or you are intentionally poking fun at an industry that attempts to glorify what is in essence "face paint," and you compare your various recipes to more than one cosmetic product simutaneously, then that would provide the sort of cover (pun intended) to keep you out of trouble.

But, if you write a treatise which instructs others on how to replicate individual cosmetic products, and you compare each to the specifc product with which you are clearly attempting to compete, then you will be sued, if only to increase your costs of doing business, by your having to pay for the legal expenses necessary to defend.

Please understand that while I would like to give you an answer that guarantees you protection, there is simply no way to do so. You are in fact, trying to trade off of the good will of the products of others. That's the entire point of your exercise. Otherwise, you would make your own products and market them as your own. So, at the outset, your competitors have the high ground.

Yes, there are undoubtedly competitors doing things like you are attempting (using the "compares to [name]" formula. But, in my opinion, this legal formula becomes more and more risky, the more transparently you attempt to invade the good will of the large cosmetic firms. The reason is because the "totality of circumstances" shows the court what you are attempting is not merely to instruct chemistry students on how to make cosmetics. Instead, you are trying to sell your products as duplicates of an established and trademark registered product.

Such a device will inevitably fail, no different than were GM to advertise its Corvette Stingray as "comparable to a Ferrari 405 Italia." It's one thing for Car and Driver Magazine to do this as part of a review of the vehicles. It's quite another for GM to do it as a means of trying to make their $50,000 sports car appear more desirable, because it compares favorably to a $250,000 competitor's vehicle.

Hope this helps.

socrateaser, Lawyer
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Experience: Retired (mostly)
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