I have an idea based on another idea, what do I have to do to steer clear of TM inf

[joshtws]

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

Hi all. I am josh. I have an amazing idea that is not being used in the marketplace, but I gained the idea from somebody who is doing something similar. They have a trademark that is live. My question is simple:

What do I have to do to steer clear of infringing on their product, yet create one similar and market it under my own trademark and patent? Do I have to design it differently or what is considered a knock off of another trade mark. This idea is very small right now and is in a start up phase by that company. They have a kickstarter, so I want to bring my own version to the market and take advantage.

EDIT: Also, if they trademark it, but don't patent it, can't I technically make my own version and apply for a patent under my own right?

 

[Zigner]

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

Hi all. I am josh. I have an amazing idea that is not being used in the marketplace, but I gained the idea from somebody who is doing something similar. They have a trademark that is live. My question is simple:

What do I have to do to steer clear of infringing on their product, yet create one similar and market it under my own trademark and patent? Do I have to design it differently or what is considered a knock off of another trade mark. This idea is very small right now and is in a start up phase by that company. They have a kickstarter, so I want to bring my own version to the market and take advantage.

EDIT: Also, if they trademark it, but don't patent it, can't I technically make my own version and apply for a patent under my own right?

Your question is WAY beyond the scope of an online forum. You will want to discuss your product with a local, trusted intellectual property attorney.

 

[joshtws]

Thanks for your input I have already contacted a few attorneys offices. If anybody else has input it is greatly appreciated.

Thx

 

[STEPHAN]

You need an IP lawyer who you can talk to openly. You need to show him the products. A forum can not handle this.

 

[Zigner]

You need an IP lawyer who you can talk to openly. You need to show him the products. A forum can not handle this.

Yep

 

[joshtws]

Is there a way to search out a pending patent application?

 

[Zigner]

Is there a way to search out a pending patent application?

Your attorney should be able to help you out...

 

[quincy]

Is there a way to search out a pending patent application?

There are a number of ways to search for a patent. There are search firms that can help you locate patent applications that have a patent pending status and, as already suggested, there are patent attorneys and patent agents. Any one of these would probably be a good place to start.

You can also do your own online search of patents that have already issued, however, through the USPTO database (http://www.uspto.gov), through Google (http://www.google.com/patents) and, for a fee, through LeoPat (http://www.lexis-nexis.com) and Delphion (http://www.delphion.com) to name just two of several fee-based patent search engines.

Until a patent is issued, a patent applicant cannot prevent others from making, using or selling the same or similar invention. A patent application, in other word, does not make a patent applicant a patent owner. That said, if a patent application is published prior to the issuance of a patent, any infringer on the invention that is published may have to pay royalties to the patent owner from the date of the patent application publication (but there are requirements that must be met).

If someone/some company already is making something similar to what you want to do, and this person/company is already marketing this something under their trademark, you will need to have your "amazing idea" personally reviewed by a IP professional in your area. The personal review is necessary to see if what you are contemplating is doable without infringing. From the little you have disclosed, this seems unlikely - but facts matter.

I agree with the others that personal reviews fall outside the scope of this forum. Good luck, Josh.