Q: Is it legal for me to use “Fruit Loops” as a flavor?
I own a CBD brand and we sell terpene infused vape pen cartridges. One of our flavors is “Fruit Loops”. We own the image on our packaging but I’m curious if the use of the term violates any trademark/patents owned by Kellogg’s. Thanks so much!
A: Almost certainly your use violates their trademark, and the penalties for exploiting their trademark for commercial gain to sell your product are severe (you not only pay all of their attorney's fees, but penalties and forfeiture of all profits earned as a result). Kellogg's will hire very expensive and aggressive lawyers. Consult a trademark lawyer going forward so you can understand what you can and cannot do exploiting other trademarked brands. Generally, you must obtain permission (a license) to use the brand name, and I imagine that Kellogg's will not want their children's fruity cereal brand associated with a nicotine delivery product that has been controversially marketed to underage users and has recently been in the news with new FDA regulations addressing just that issue.
A:
I agree that you should consult with a trademark attorney and be prepared that you may face aggressive action by the larger company even if there is a technical argument that you are in two different market segments. Trademark law allows for Delta to be used with respect to an airline and with respect to faucets and other plumbing supplies as consumers are not thought to be confused that the airline is the source of faucets.
I think that using the mark Fruit Loops is poking a bee hive. Hard to see any good that will come of it. You can find another term that conveys to the consumer that you have a sweet fruity taste. Make a list and then go to http://tmsearch.uspto.gov/bin/gate.exe?f=tess&state=4804:w303z4.1.1 to see if there is a live trademark that is for a similar good. If so, cut that one off your list. Then take your survivors to a trademark attorney to pick the winner.
Maybe-- Fruity Vape Rings
Kevin E Flynn
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
