Patent? Copyright? Where to start...

[isis297]

What is the name of your state (only U.S. law)? NY

We are interested in recreating a product that stopped being produced in the 1980s. To get started we just want the name and the logo as it was which was just a text drawing. I've tried researching the product itself, the name, etc. and the only thing I came up with was that the name was trademarked as having a text design but that was cancelled in the mid-1990s.

1) Can we take the name and the design and do we just trademark it as well or do we need to copyright it too?

2) As for the product, we could not find a patent under the product's name at all. Does that mean we can take the design and patent it or what do we need to do to make the product ours? Is changing one thing on it enough? My husband seems to think that because the product is a design of something that it is a copyright thing. Is he correct or is it patent?

Anybody know of any patent/copyright attorneys who would be willing to consult without a huge cost, especially knowing that should we move forward, we would need to hire a lawyer we could trust which would hopefully be that person?

[FlyingRon]

You can not copyright names.

You can not patent things you didn't invent and that are not novel.
Just changing things a little bit doesn't help with either copyrights or patents.

I assume you are not the original owner or successor of this product.
You should not assume just because the product is no longer being marketed and the trademark for it has expired that part or all of it are not still covered by copyright. Even if the original company is out of business there is still likely to be a successor.

[isis297]

Ok, so we cannot trademark a name and it's text drawn form even if the trademark has been dead for over 10 years? (Just making sure I understand...not being argumentative.) I just thought that was the whole point of trademarks, patents and all of that. If someone isn't using it and it isn't protected, don't we have the legal choice to take it and do something with it if we want?

As for the design, we wanted to keep the basic design but make it different if that makes sense.

No we are not the owners and the parent company is still around but they haven't made the product in over 20 years and haven't used the name in over 10. We always felt it was a shame the product was dropped and figured enough time had passed that we could do something with it to bring it back.

[isis297]

What CAN we do in order to make a business with this name, logo and basic design?

[Some Random Guy]

What CAN we do in order to make a business with this name, logo and basic design?

You can do one of two things:

1. Buy the rights from the company which is still around. You may also be able to buy the logo and tooling required to manufacture the product.

2. Create a new product from scratch which has the features you want without infringing on the copyrights, trademarks, design patents and regular patents of the original product. Then proceed to market this new product without claiming to be the same as the original or using their trademark.

[isis297]

Here is what I don't understand.

1) How is it trademark infringement if the trademark has been dead for almost 15 years?

2) How do other companies manufacture products that are the same concept by only changing some things on them? How many various companies make trash bags, hangers, pencils, phones, or any number of other products that have a basic concept but different manufacturers change a couple of things to "make it theirs"? I actually know a woman who created a product that was similar to something else out there used for washing babies and she got her patent approved because her product was simply made from another material and had one other difference to it. Why wouldn't that work in this case?

Again, not trying to argue. I am trying to understand so I get it and can explain it to my husband and with the examples above, I hope you see why just being told I can't do it because it isn't my design doesn't make sense to me.

If I make some changes to it, why wouldn't I be able to get the design approved as well and if the trademark has been dead, why can't I use that?

[divgradcurl]

Originally Posted by isis297

Here is what I don't understand.

1) How is it trademark infringement if the trademark has been dead for almost 15 years?

Trademark rights and a trademark registration are two separate things. The trademark registration may be dead, but that could be for a number of reasons, including a simple failure to keep paying the fees to maintain a registration. Even if the registration has lapsed, if the trademark is still be used in commerce, the user still retains the rights to the mark itself.

If the trademark is truly dead, and not being used being used by anyone in commerce, then you could begin using the mark to identify your own products But you will want to be certain that the mark is truly not in use in commerce. Further, as was alluded to before, if you want to use a fanciful logo, there is also almost certainly a copyright in the logo that you need to be concerned with.

2) How do other companies manufacture products that are the same concept by only changing some things on them? How many various companies make trash bags, hangers, pencils, phones, or any number of other products that have a basic concept but different manufacturers change a couple of things to "make it theirs"? I actually know a woman who created a product that was similar to something else out there used for washing babies and she got her patent approved because her product was simply made from another material and had one other difference to it. Why wouldn't that work in this case?

If a product isn't covered by a valid patent (in whole or in part), then anyone can manufacture and sell a copy of the product. If there is a trademark or copyrighted work embodied in the product, then you can't copy the trademarked or copyrighted part.

Again, not trying to argue. I am trying to understand so I get it and can explain it to my husband and with the examples above, I hope you see why just being told I can't do it because it isn't my design doesn't make sense to me.

If I make some changes to it, why wouldn't I be able to get the design approved as well and if the trademark has been dead, why can't I use that?

Your best bet is to sit down with an attorney, who can review your actual business plans and advise you accordingly. Intellectual property rights can be broad, and can be complicated and confusing, but there are limits to what can be protected. It's hard to determine where those limits lie based on a brief description (or analogy) on a message board -- hence the advice to speak with your own lawyer.