Can I use a product that already exists to make another product?

Question

In short, I want to start a small internet shop (think like Etsy) that sells an idea I have for a handmade item. Something I would need to make the item is hair dye, and I've done TONS of research and I can't find anywhere to buy ingredients for hair dye because the process of making hair dye is something that must be done by a chemist. So my question is, if my item involves adding hair dye to several other ingredients, is it legal to put a branded hair dye in my item?

The more important legal restriction may be that something including hair dye may be a cosmetic and has to comply to particular customer safetry regulations (chemical safety in this case would mean that your mixture must be evaluated as mixture, having all ingredients certified safe for use may not be sufficient) — cbeleites unhappy with SX, Aug 09 '21 at 15:20
Hair dye of the salon variety typically is only sold to licensed professionals and often comes with strict limits regarding redistribution. This is similar to other strong chemical products that are not sold to the general public for reasons of them carrying elevated health and safety risks that require special training to handle safely. Are you asking about professional hair dye (ie: salon dye) or consumer box dye, like what is sold in pharmacies, etc? — J..., Aug 09 '21 at 16:14
You of course have no guarantee that the hair dye's unique chemical composition which you rely on will be retained into the future. A specific contract with the manufacturer might be useful. — RBarryYoung, Aug 09 '21 at 19:18
@cbeleitesunhappywithSX If they're using the hair dye as a part of the manufacturing process (e.g. using it to dye cloth), they might not need to do so. — nick012000, Aug 10 '21 at 02:07
@Katie is the OP and the editor the same person? If so, please ask us to merge the accounts. — Dale M, Aug 10 '21 at 03:00
Does this answer your question? Is it legal to sell something that uses another product as one of its ingredients? — , Aug 10 '21 at 05:36
Even if you could buy the raw ingredients for hair dye, wouldn't that raise the same question -- those ingredients would be the product that you're using to make your product. — Barmar, Aug 10 '21 at 15:01
Are you planning on mentioning the brand name of the hair dye on your packaging or elsewhere? If not, the doctrine of first sale applies, if you are, then it's probably nominative use, which is also protected. — Acccumulation, Aug 10 '21 at 19:23
You paint your house you can still sell it, or make pottery and paint it, or bake a cake and use food coloring, icing etc... — AbraCadaver, Aug 11 '21 at 15:36
You use paper to make a book, a CPU to make a computer, a doorknob to make a door, and so on. Either you literally make something out of clay or whatever, or you make it at least partially out of another product. Invention would be almost completely illegal if this were not readily tolerated. — , Aug 12 '21 at 03:27

score 38 · Answer 1 · edited Aug 10 '21 at 02:59

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Yes

That’s what construction companies do.

And manufacturing companies.

And car companies.

And coffee shops.

And restaurants.

And …

edited Aug 10 '21 at 02:59

terdon

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answered Aug 09 '21 at 09:32

Dale M

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However, there is a small possibility that the hair dye company might find out, and stop selling you hair dye, if they don't like your product for some reason. – user253751 Aug 09 '21 at 10:06
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+1 Important to note that all of those companies use branded items but don't list the branded name on the label / ingredients list. Normally, they directly list the separate ingredients of the branded item on the label, or list the function of the branded item followed by the ingredient list between parenthesis e.g.: dye (ingredient A, ingredient B, ingredient C, ingredient D, ...) – Juliana Karasawa Souza Aug 09 '21 at 10:29
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@JulianaKarasawaSouza: Milka brand of chocolate over here has one kind that includes Oreo brand cookies in the chocolate (both Milka and Oreo belong to Mondelēz International, btw.). But of course a company that doesn't list a particular brand doesn't need to change the labelling if they want to change their supplier - so in most cases, they'd presumably rather not list the supplier brands unless they have to. – cbeleites unhappy with SX Aug 09 '21 at 15:27
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@cbeleitesunhappywithSX the more significant reason is that a manufacturer who advertises the presence (for example) Oreos in their products but does not own the Oreo trademark will be liable for trademark infringement unless there is a licensing agreement, which would typically require paying a licensing fee to the trademark owner. Even with Milka and Oreo there is likely to be a licensing fee between different subsidiaries of Mondelez. (For that matter, even the subsidiaries that manufacture Oreos probably license the Oreo trademark from another subsidiary, but that's another discussion.) – phoog Aug 09 '21 at 16:13
@user253751 the only time I've seen that is in international trade, where, for example, the European manufactures (or their governments) of the chemicals used in US lethal injections refused to sell them in the US anymore. Note, though, that drugs are a lot more regulated than most industrial chemicals. – RonJohn Aug 09 '21 at 16:35
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@phoog: yes, with emphasis on advertising. The ingredients list may be a different case though. E.g. German trademark law says the owner of the trade mark cannot prohibit the use of the trade mark to (truly) identify or refer to their (legally obtained) product or service. The fancy restaurant can specify that their coc-au-vin is made with some brand wine, the local car workshop can say they are TÜV-certified, both without the need to obtain a license from the trade mark owners (TÜV and wine brand owner can prohibit using their brand for stuff that isn't theirs, though). – cbeleites unhappy with SX Aug 09 '21 at 18:24
@phoog according to my common sense, wouldn't it be nominative use, as long as it didn't suggest endorsement? – user253751 Aug 09 '21 at 20:08
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@JulianaKarasawaSouza Really? Intel Inside. Made with colourbond steel. Uses Rolls Royce engines. Plenty of assemblers are explicit about the components. – Dale M Aug 09 '21 at 21:18
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@DaleM I'm aware of what licensing agreements for marketing purposes are. Meanwhile, no toothpaste I ever made lists Cooling agent 10 (trademarked by Takasago) even though we bought trucks of that stuff back in the day – Juliana Karasawa Souza Aug 10 '21 at 05:34
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@JulianaKarasawaSouza It's not because there was no licensing agreement, it's because there was no benefit to listing "Cooling Agent 10" (no consumer checks the label to make sure it's genuine Cooling Agent 10). In the US, you are explicitly allowed to resell something using the trademarked name under the First Sale Doctrine (note that resell != reproduce). Most of the examples that Dale M listed were probably not under any licensing agreement, or not what you would think of as such--note that Intel was paying manufacturers to include the Intel Inside sticker, not the other way around. – user3067860 Aug 10 '21 at 17:09
@cbeleitesunhappywithSX - A better example is McDonalds Oreo McFlurry since McDonalds does not own the Oreo trademark. – slebetman Aug 10 '21 at 21:51
@user3067860 in the US, at least. In some other countries, if you don't have a licensing agreement, you are not allowed to use the commercial name of the ingredient - following on the fast food example, a local fast food chain in Brazil is no longer allowed to sell Ovaltine sundaes / shakes with the brand name (even in the ingredient list) because McDonalds overtook the license agreement. They now have to call it "crispy sundaes" and list "malted milk chocolate mix" in the ingredient list. – Juliana Karasawa Souza Aug 11 '21 at 05:38
@JulianaKarasawaSouza Funny, I've never been in a building or a car where the ingredients were listed. – Dale M Aug 12 '21 at 05:25
@DaleM But you sure bought many products which listed ingredients, right? Apples to apples – Juliana Karasawa Souza Aug 12 '21 at 05:31
There is a big difference between buying raw materials from a company to make your product, and buying a trademarked end product and re-selling it by making minor changes on it, while using its brand for exposure. There have been successful lawsuits in the latter case. – vsz Aug 12 '21 at 14:47
@vsz I don’t understand why the comments are dominated with issues of trademark, neither the OP nor my answer suggests that the ingredients are trademarked or if they are that the final product refers to them. – Dale M Aug 12 '21 at 22:11
@vsz The Saten-shoes lawsuit never made it to trial. It's completely possible that a judge would have said that there was no problem with using the name (especially given that Nike hadn't objected to the same person using the name to sell angel-themed shoes). And the argument that Nike was trying to make in that case was also different, they were arguing that the Satan-shoes were specifically causing consumers to think that there might be a problem with Nike shoes. That's different from a generic objection to someone saying that their product is "made with" your product. – user3067860 Aug 18 '21 at 11:34
@DaleM The OP specifies "branded hair dye". The OP doesn't specify referring to the hair dye by name in the product description, but it's certainly a relevant question. If nothing else, what shall the OP say if someone asks what dye is used in their product? Trade secret? – user3067860 Aug 18 '21 at 11:36

score 13 · Answer 2 · answered Aug 09 '21 at 16:37

Can I use a product that already exists to make another product?

If you didn't do that, you'd have to make everything from scratch. Nobody (except for guys on YouTube who show you how expensive things really are) does that.

Thus, you'll of course buy "other products" to make your own products.

score 9 · Answer 3 · answered Aug 10 '21 at 03:32

If you go to any ice cream shop (e.g. Cold Stone Creamery), they will offer a variety of toppings. Some of those toppings will be "crushed Oreos", "M&M"s, Reese Pieces, crushed Snickers bars, crushed Kit Kat bars, etc.

When you sell things like that, you are using the term as a descriptive, so they can't prohibit you from referencing the product, and you don't need to license the use. However, if you do call them M&Ms, you must actually use M&M's.

But clearly, any ice cream shop can do that, since they all do.

If they want to make a "chocolate deluxe" sundae and don't even mention the crushed cookies used in the melange are genuine Oreos, there's no problem with failing to mention that.

However, relevant to your product -- if there are any special licensure, inspections or other requirements required to sell your product, for instance if you are selling hair dye, then you are fully obligated to meet ALL those requirements - even if you do not know they are requirements. This is one area where "ignorance of the law is no excuse".

There are lots of forums on the Internet, and your second-best bet is to connect with knowledgeable people doing the same thing (or abstaining to do that thing because the licensure is onerous). Your best bet is to rely on the advice of your industry-practicing lawyer.

score 3 · Answer 4 · answered Aug 09 '21 at 09:16

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When you buy hair-dye, it is very likely to come without any commercial restrictions on use; there may be restrictions that the seller tries to make on doing dangerous things. Say if I sell hair spray I might add a license that says you are not allowed to spray into open flames - it would be very dangerous, highly stupid, and the license would make it harder for you to claim damages from me.

Trademark laws may prevent you from telling the public that you put XYZ hair dye into your product, but that is only about the use of their trademarked name. The seller may tell you that you are not allowed to do this, whether they can legally prevent you is another question, but it will help them if the hair dye causes problems in your product.

answered Aug 09 '21 at 09:16

gnasher729

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Can you really make it illegal for someone to spray your hair dye into an open flame? Other than by using already-existing laws about people doing dangerous stuff? – user253751 Aug 09 '21 at 10:06
@user253751 the company is not making it illegal, it is just insulating itself from damage claims i.e. "if you do this stupid thing I explicitly told you to NOT do, it is your own risk and you cannot sue me for that". That has the very apt name of a "disclaimer" – Juliana Karasawa Souza Aug 09 '21 at 10:20
@JulianaKarasawaSouza and that is very different from "not allowed to" which in my interpretation implies "illegal" – user253751 Aug 09 '21 at 10:21
@user253751 the "not allowed to do this" sentence refers to use the trademark name, not do dangerous stuff with the product. For example, if OP buys hair dye from, say, Manic Panic, the company can forbid OP from listing "made with Manic Panic hair dye" on the front label as a marketing statement or "Manic Panic hair dye" on the list of ingredients. If OP proceeds to do so without authorization from them, they're infringing a trademark and this has nothing to do with damages incurred from not using the product as intended – Juliana Karasawa Souza Aug 09 '21 at 10:25
I can write license that doesn't allow you to spray hair spray into an open flame. Whether this license has any legal value - I don't know. But if you burn yourself because you did this stupid thing and try to take me to court for damages, I will point out the license, and that you violated the license, and whether the license is legally enforcable or not, you will find it much harder to get damages from me. – gnasher729 Aug 09 '21 at 17:27
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Juliana: Microwave - not suitable to dry wet pets :-) – gnasher729 Aug 09 '21 at 17:28
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@JulianaKarasawaSouza you can list a product's actual trademarked name in an ingredients list without infringing the trademark. You might not be able to use the name anywhere else on the packaging, though, without obtaining a license from the patent holder. – Dan Henderson Aug 09 '21 at 20:54
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The First Sale doctrine would probably prohibit such ongoing strings in a sale contract from being enforced even if it contained them. https://en.wikipedia.org/wiki/First-sale_doctrine – ohwilleke Aug 09 '21 at 21:45
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@gnasher729 That's a safety warning, not a licence. – bdsl Aug 09 '21 at 21:51
@gnasher729 However, microwaves were once apparently used to reanimate (mostly-?)dead hamsters. – Richard Ward Aug 11 '21 at 11:12

Can I use a product that already exists to make another product?

4 Answers4

Yes