Can I duplicate and bring to market a product that was dicsontinued several years ago

[jmooredesigns]

What is the name of your state (only U.S. law)? Ohio.
I am interested in producing a product that was made for many decades and abandoned about 5 years ago by the company owner. They bought the original company and cancelled production of the product and have no intentions of reproducing the item. None of the products were ever marked with patent numbers or copyright info and I cannot find a patent or copyright filing for the product. I see these things happening all the time and I wonder if i would be legal doing so. The product will be very similar but with a new name. Thank you for your advise in advance.

 

[quincy]

What is the name of your state (only U.S. law)? Ohio.
I am interested in producing a product that was made for many decades and abandoned about 5 years ago by the company owner. They bought the original company and cancelled production of the product and have no intentions of reproducing the item. None of the products were ever marked with patent numbers or copyright info and I cannot find a patent or copyright filing for the product. I see these things happening all the time and I wonder if i would be legal doing so. The product will be very similar but with a new name. Thank you for your advise in advance.

Yes, it can be legal to recreate or revive a product that was once produced and has since been abandoned.

You will need to search for the previous owner, however, to make sure that there are no lingering rights in the company or the product that need to be dealt with first. The search can be a difficult one but it needs to be done to ensure that what you want to do does not infringe.

Both federal and state trademark searches should reveal information you can use in your search. There are search firms that can help in finding the owner and the current status of the company and its products.

Good luck.

 

[jmooredesigns]

Yes, it can be legal to recreate or revive a product that was once produced and has since been abandoned.

You will need to search for the previous owner, however, to make sure that there are no lingering rights in the company or the product that need to be dealt with first. The search can be a difficult one but it needs to be done to ensure that what you want to do does not infringe.

Both federal and state trademark searches should reveal information you can use in your search. There are search firms that can help in finding the owner and the current status of the company and its products.

Good luck.

I have tried contacting the company on many occasions to purchase the molds used to produce the products and They wouldnt sell them at first when the product was discontinued. Then last summer I called again and was told that they were scrapped for scrap metal. I am almost certain there was not patents or copyrights due to the age of the product they went back well into the 70's maybe even earlier and although there were a few modifications over the years they were essentially the same thing. 1 of thousands of products under the same name. The product itself didnt have a specific name only the name of the original company that rtarted producing them many many years ago. The company that bought them and then discontinued them is a MAJOR fortune 500 company who could care less about the product I am pretty certain, they went and scrapped 0's of thousands of dollars worth of molds that were used to make the product. However this is heresay from a couple phone conversations I had with the company that made them for them. So how does one go about this search and what would something like this cost just to be 100 percent certain?

 

[justalayman]

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I am almost certain there was not patents or copyrights due to the age of the product they went back well into the 70's maybe even earlier and although there were a few modifications over the years they were essentially the same thing.

copyrights last much longer than that. Patents expire but one way to defeat that is to make changes and seek a new patent. No idea what the product is but you should consider a trademark issue as well.

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The company that bought them and then discontinued them is a MAJOR fortune 500 company who could care less about the product I am pretty certain

,well, you might be in for a big surprise. You really don't want to find out the hard way they do care.

they went and scrapped 0's of thousands of dollars worth of molds that were used to make the product

.considering it is a fortune 500 company, merely a drop in the bucket.

 

[jmooredesigns]

Totally agree and why i am asking. I may ne way off base here but i was under the impression copyrights were only valid foe the original owner of a work and had to be marked as such foe protection? Again a patent and copyright search yields nothing when searching for the product via name and what it is. How do i find out for certain if i am correct in there were no copyrights or patents on the product? Obviously the company iant interested in the product any longer as they discontinued it and sold me all the remaining inventory in access of 3 semi trucks full and scrapped the molds to make them. What and how do i find out for certain? Thank you.

 

[FlyingRon]

.copyrights last much longer than that. Patents expire but one way to defeat that is to make changes and seek a new patent. No idea what the product is but you should consider a trademark issue as well.

Just making changes and getting a new patent doesn't invalidate the old patent. Your new invention is subject to BOTH patents.

 

[quincy]

Totally agree and why i am asking. I may ne way off base here but i was under the impression copyrights were only valid foe the original owner of a work and had to be marked as such foe protection? Again a patent and copyright search yields nothing when searching for the product via name and what it is. How do i find out for certain if i am correct in there were no copyrights or patents on the product? Obviously the company iant interested in the product any longer as they discontinued it and sold me all the remaining inventory in access of 3 semi trucks full and scrapped the molds to make them. What and how do i find out for certain? Thank you.

If you are serious about starting a business using a product that once was manufactured by a Fortune 500 company, you would be smart to invest in an attorney now. You sound confused about the rights that attach to not only the product (which, even if the product is no longer in production may still exist in the marketplace - think Edsel), but also to the name and the design rights.

If you contacted the company last summer, I am curious why you are unable to contact the previous owner now.

Whatever the case, you appear to need more help than a forum can provide. I recommend a search firm and an IP attorney, to start. You will probably want assistance from a business law professional later. I definitely would not invest any money into your business prematurely.

Good luck.

 

[justalayman]

Just making changes and getting a new patent doesn't invalidate the old patent. Your new invention is subject to BOTH patents.

I was thinking along the lines that the earlier patents may have already expired. Obviously any patent still active would have to be respected.

 

[FlyingRon]

I was thinking along the lines that the earlier patents may have already expired. Obviously any patent still active would have to be respected.

Just making trivial changes to an expired patent won't meet the novelty requirements most likely.

 

[justalayman]

Just making trivial changes to an expired patent won't meet the novelty requirements most likely.

I understand that Ron but incorporating a part or such that is still covered by patent makes it so that it cannot be made exactly as it is being made (although the expired patented design could be). That can be enough to dissuade some people from copying the product, even the version where it no longer had any patent coverage. It's simply a game to attempt to protect their product, even if it is only a facade. Sometimes that facade is enough to keep people away.

 

[quincy]

It depends on the type of patent. The infringement of utility patents are judged differently than the infringement of design patents.

With design patent infringement, a court looks at whether the new design is similar in appearance to the patented design (this is an "ordinary observer test") and the court looks at the prior art to determine if the new design appropriates the novelty of the patented design. "Novelty" is defined in 35 US Code Section 102.

With utility patent infringement, the infringer who makes and sells goods covered by a current patent will generally be ordered by a court to stop the infringement. The profits and/or losses of the patent holder will be figured. Willful infringers can expect to pay treble the damages.

But am I the only one thinking of a product along the lines of "Hostess Twinkies?" As I was reading the posts, in my head I saw a bunch of Twinkies and the molds being sold for scrap.

Maybe I am just hungry.