When Are Food Knock-offs Distasteful?

Look familiar?
Look familiar?
Photo by Joanna O'Leary.

If your Girl Scout Cookie of choice is the Samoa, then you might be happy to know that these goodies are NOT only available through green-uniformed girl children and for $3-4 a pop.

Keebler offers a nearly identical version called "Coconut Dreams," which are available year-round and often on sale (two for $5!). I couldn't believe this was legal until I learned Girl Scout cookies are owned and produced by Keebler. (Guess it makes sense: elves and brownies are similar species. Har.) Anyway, the Coconut Dreams should be just as good, right? In this case, I think so.

But I'm not sure when it comes to other knock-offs. I wasn't sorry about the demise of Hydrox cookies, as these "poor man's Oreos" always tasted vaguely medicinal to me.

However, I have always liked the flavor of Coke's less popular twin, RC Cola, but perhaps that's because I'm partial to the underdog.

Keebler elves/GSA brownies aside, I was still unclear up until recently as to why it wasn't infringement when one company replicates another company's product and simply sells it under a different name.

Same but different.
Same but different.
Photo by Joanna O'Leary.

My IP lawyer friends enlightened me to the fact that copyright restrictions usually don't apply to food; while a food name or symbol may be trademarked (and therefore protected under the law), there's nothing to stop a company from selling a copycat product. A good example are Heath and SKOR bars, identical toffee chocolate confections that were once simultaneously made by different companies (now Hershey owns and produces both products).

Sometimes, the particular packaging and/or market presentation of a food is protected (a concept called "trade dress") so that consumers can reasonably distinguish that product from others (knock-offs included). And the specific formula for a product (e.g. Coca-Cola) may be protected as a "trade secret" such that employees of that product's company are often required to sign a contract banning them from disclosing it to competitors. A "trade secret" basically affords a company a temporary monopoly on a product formula until someone legally (i.e. NOT THROUGH SPYING) figures it out. So those brats sneaking stuff out of the Wonka factory could have gone to prison! Except it was Britain. Oh well.

But let's forget about The State for a moment. Is it ethical for someone to "borrow" a food product concept and reap significant profits? What about Keebler indirectly undercutting the Girl Scouts by producing an identical cookie that is subject to significant price reductions in grocery stores? What if one company illegally copies a protected product but its copycat is a vast improvement (i.e., safer, more healthful)?

Complicated issues, methinks. Readers, your thoughts?

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