my question is simple. If I were to sell a food product at my takeaway shop for example our own chicken wings with Frank's redhot sauce which is a branded sauce, would we be able to advertise as Frank's red hot chicken wings or chicken wings with franks red hot sauce? And if that is not an issue is it possible to advertise their logo next to the picture of our chicken wings on the menu/flyer? I feel it would only benefit the brand in use as a means of advertising and collaboration with no harm to their brand since they are still separate products. Thank you for reading.
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You could ask the marketing office of the company whose products you want to use. You might want to talk to a lawyer, too.– phoogCommented May 25, 2020 at 4:14
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Are you reselling their product (e.g. selling a sealed bottle of Frank's sauce) or are you using their product as an ingredient in your own product(e.g. covering chicken in Frank's sauce and then cooking it)?– sharurCommented May 25, 2020 at 4:43
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@phoog did think there maybe be a need of a lawyer. Very annoying if I wanted a different variety.– AffyCommented May 25, 2020 at 4:49
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@sharur covering the chicken with sauce to marinate for flavour but want people to know it's that particular sauce by showing mention of it on the menu.– AffyCommented May 25, 2020 at 4:51
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Well requests for legal advice are off topic here, so we often mention that people who want legal advice should ask a lawyer. But basically, you have two options: do it and wait to see how they react, or ask them beforehand. You can do either without a lawyer, of course, but doing the first without a lawyer is probably foolhardy, and doing the second without a lawyer would put you in a weak negotiating position.– phoogCommented May 25, 2020 at 5:18
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2 Answers
You're talking about using someone else's trademark in marketing your product. In that context you likely need permission from the licensor.
The licensor is the entity in the territory with exclusive legal rights over a thing that gives, sells or otherwise surrenders to another entity a limited right to use that thing in the territory.
The licensor might be nice and easy going, they might have a restrictive and onerous approvals process or they might completely refuse you.
I feel it would only benefit the brand in use as a means of advertising and collaboration with no harm to their brand since they are still separate products.
But the licensor may not hold the same belief and let's be forthright about it: you want to use their trademark or material to benefit your product or service.
If the usage were solely informational or descriptive (e.g. "Ingredients: ... Frank's Redhot Sauce ... ") or "collateral" (the trademarked item is part of a larger product) that might be OK. But even if it were legally OK you might nevertheless be tied up in a legal argument to establish that it's OK.
However, my inference from what you wrote is that the trademarked name would be given prominence in your marketing material that they could argue implies some kind of relationship or affiliation or could lead to customers being confused that the licensor was involved in producing or selling the product.
A trademark must be used to identify the brand
If you were to identify that your wings were made with Frank’s Red Hot SauceTM or R then this is exactly what trademarks are for. There is little to no chance that a consumer could conclude that Frank is producing or endorsing your wings - you are using Frank’s sauce.
However, calling them Frank’s Red Hot Wings is likely trademark infringement because the use of the trademark is extending it to apply to your product, not Frank’s.
