What's the penalty if you get caught? Restaurants usually just say it's "ketchup" without mentioning that it's Heinz. What can Heinz actually do to you if you buy a bottle of their stuff and fill it with something else?
> If you're using Heinz' trademark to sell a different product they can sue you easy.
No. If you're using the Heinz trademark in such a way as to confuse and mislead the public, then they can sue you. Otherwise probably not.
Consider the example of Apple Computer and Apple Music (once owned by the Beatles). Two businesses, no conflict, so no lawsuit.
Once Sun Computer threatened to sue me because I had a Web page named "Sun Computer" (the page computed the position of the sun: http://www.arachnoid.com/lutusp/sunrise/). My argument was that I wasn't trying to confuse the public, and my use of the word "sun" was legitimate because it referred to the astronomical object by that name. Their objection was that my use of "Sun Computer" as a page name caused my page to appear above theirs in the Google search listings.
I decided their position had merit, and I renamed the page. My point is that it is all about the degree to which use of a trademark or trademarked name would confuse the public and hurt someone's business, not use of a trademark per se.
The different product the parent mentioned is still ketchup. The scenario is replacing the ketchup in a Heinz bottle with ketchup from another brand, not selling "Heinz Cola" or something.
My post showed that the OP was wrong -- it showed that using a trademarked name is not in and of itself actionable. There has to be a basis for action apart from the simple fact that the names are the same.
Well that's the interesting thing, I'd imagine that there is some kind of penalty but I have no idea what. Misrepresentation of a food product to consumers? Maybe. It's tenuous, but I'd imagine it's very possible for them to spin it like that.