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   trademark and patent for an existing product
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   Author  Topic: trademark and patent for an existing product  (Read 2627 times)
wholesaler
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trademark and patent for an existing product
« on: Aug 12th, 2007, 12:38pm »
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Hi,
 
I posted this in the trade mark section as well but it is also concerning a patent rights.
I'm a wholesaler and have been selling for several months a specific toy with a specific name.
Recently, I was contacted by a company that bought the trade mark for that name related to that toy that I sell.
They said that now they own the trade mark for it and I can't sell it.
I was selling this product long before they even register the mark, can they prevent me from continue selling it now?
They also claim that they have patent pending rights for this product, but their filing date is long after I was selling it. How can they claim rights for something that was already in the market?
It looks like they saw a good selling product in the market and decided to register some rights for it and then go after the people that were already selling it.
What are my rights regarding this issue?
 
Thanks,
David
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Bill Richards
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Re: trademark and patent for an existing product
« Reply #1 on: Aug 12th, 2007, 1:57pm »
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You are correct in that this is mostly a TM issue.
 
on Aug 12th, 2007, 12:38pm, wholesaler wrote:
They said that now they own the trade mark for it and I can't sell it.

Selling the product and selling the product under the same TM can be two different issues.
 
Quote:
They also claim that they have patent pending rights for this product, but their filing date is long after I was selling it. How can they claim rights for something that was already in the market?

It depends upon the product and what's claimed.  In general, unless they invented the product and unless it's within one year of the first sale or offer to sell, they shouldn't be able to get the product patented.  These are hard questions to answer in the abstract.
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William B. Richards, P.E.
The Richards Law Firm
Patents, Trademarks, and Copyrights
614/939-1488
wholesaler
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Re: trademark and patent for an existing product
« Reply #2 on: Aug 12th, 2007, 3:03pm »
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I'm selling the product under the same name that I have been selling it for the past 8 months.
This name is the name that the manufacturer gave it about a year ago.
This company OBVIOUSLY saw that this product is a good seller and decided to register the trade mark (that was already in use) only about 2 months ago. (the filing date is in June)
Can they do something like this and then go after all the sellers that already sell it for a while?
 
Thanks,
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still_studying
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Re: trademark and patent for an existing product
« Reply #3 on: Aug 12th, 2007, 9:57pm »
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on Aug 12th, 2007, 3:03pm, wholesaler wrote:
I'm selling the product under the same name that I have been selling it for the past 8 months.
This name is the name that the manufacturer gave it about a year ago.
This company OBVIOUSLY saw that this product is a good seller and decided to register the trade mark (that was already in use) only about 2 months ago. (the filing date is in June)
Can they do something like this and then go after all the sellers that already sell it for a while?

No, you have prior use, and hence preexisting rights.  There are people and companies that have tried this, and they keep getting shot down.  Unfortunately, it doesn't stop others from trying to play the same game.  It just wastes everyones' time and money.
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PA
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Re: trademark and patent for an existing product
« Reply #4 on: Aug 13th, 2007, 9:23am »
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on Aug 12th, 2007, 9:57pm, still_studying wrote:

No, you have prior use, and hence preexisting rights.  There are people and companies that have tried this, and they keep getting shot down.  Unfortunately, it doesn't stop others from trying to play the same game.  It just wastes everyones' time and money.

How do you know for sure the OP's rights are senior to those of the registrant's?
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