Brief Fact Summary.
National Biscuit Co. (NBC) sued Kellogg Co. for producing shredded wheat after the expiration of NBC’s patent to manufacture the product.
Synopsis of Rule of Law.
A party is allowed to produce and sell a product that is unprotected by trademark or patent.
National Biscuit Co. (NBC) was issued a patent for the production of shredded wheat in 1905. The patent for the production of shredded wheat expired in 1912 and Kellogg Co. (Kellogg) began producing and selling shredded wheat in the same form of NBC in 1922. NBC then sued Kelloogg and the circuit court enjoined Kellogg from using the name shredded wheat and selling it’s product in the same form of NBC’s shredded wheat.
Whether a party is allowed to produce and sell a product that is unprotected by trademark or patent?
Yes. Kellogg may use both the pillow shape and the term “shredded wheat” because NBC’s patent expired and shredded wheat is a generic term. The judgment of the circuit court is reversed.
The evidence is persuasive that this form is functional.View Full Point of Law
(McReynolds, J.) Kellogg is seeking to unjustly profit from a product that was popularized by NBC.
A term is unprotected in trademark law if the term is generally used to refer to a product. Similarly, once a product has expired, the public is allowed access to the product.