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Author Topic: Product Idea - do I really need to patent it  (Read 2203 times)

Corey Rozon

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Product Idea - do I really need to patent it
« on: 05-26-11 at 01:38 pm »

I have an idea for a simple product that can be used in the events and promotional industry. Do I really need to patent it? Or will trade marking the name do?
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JimIvey

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Re: Product Idea - do I really need to patent it
« Reply #1 on: 05-26-11 at 02:11 pm »

Trademarks and patents cover different things. 

A trademark allows you to give your gadget some name or logo or something that distinguishes it from similar things from others.  For example, let's say you promote your promotional gadget as The Promotinator(tm).  Others can copy your gadget, pretty much exactly, and sell it in competition with you as long as they don't call it something that sounds too much like "The Promotinator."  They can call it something like "The Promoter's Li'l Helper."

If the gadget is novel (previously unknown) and non-obvious (not a trivial variation or combination of known things), you can get a patent that would prevent anyone from making, using, selling, offering to sell, or importing anything that falls within the definition of your invention (preferably covering numerous variations) in your patent.

If you want to sell your gadget yourself, neither of those is needed.  But, without a trademark, others can pretty much sell things under the same name/logo, and without a patent, others can sell directly competing goods.

Regards.
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Kaitlin

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Re: Product Idea - do I really need to patent it
« Reply #2 on: 06-06-11 at 01:35 pm »

I'm coming to this thread a bit late, but feel there's a need to clarify what Jim wrote, speaking from the trademark side of the fence.

A trademark is an identifying name, logo or other device used to show that the goods or services carrying that mark come from a common source; it shouldn't really be thought of as a name you give to a product.  While it's possible to use a mark that way, it's pretty risky and trademark attorneys regularly advise against it.  The risk is that, if the product doesn't yet have its own generic name, then the public could easily start using the "trademark" name as the generic term for for the new product.  Iconic examples of trademarks that lost their trademark status by becoming "generic" this way are "aspirin", "thermos", and "elevator".  TM attorneys frequently suggest their clients use marks as "adjectives" only, as a way to keep them from stumbling into problems.

Also, saying that someone doesn't need a trademark to sell an item, while true, could be misinterpreted.  Many people don't realize that just by using a name or logo as a trademark in selling their goods or services, they are establishing trademark rights.  They do not need to register the name or logo to have trademark rights in it, although registration helps in enforcing those rights.  (And they could also possibly be infringing, if there's a likelihood of their mark being confused with a similar mark owned by a senior user.)



Finally, venturing with some trepidation over to the patent side of the fence, it seems to me it may be worth also clarifying for the OP that while he does not "need" to patent his device to sell it, if the device does meet the criteria of being "novel, useful, non-obvious," and anything else I may have missed that goes into patentability, by selling it or putting it on public display he could lose the chance of ever patenting it in many foreign countries and will start a one-year deadline running for applying for any U.S. patent on it.  The OP would do well to read up a bit on patents to see if his new product, or any aspects of it, might be eligible for patent protection.  Searching "patentability" in this forum may pull up some helpful background information.  The PTO website at http://www.uspto.gov/patents/resources/general_info_concerning_patents.jsp also has introductory information.  And Nolo press has a book on Patent for Beginners which could be bought or even found at many local libraries: http://www.nolo.com/products/nolos-patents-for-beginners-QPAT.html.
« Last Edit: 06-06-11 at 10:43 pm by Kaitlin »
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This post is an off-the-cuff musing and should not be misconstrued as legal advice. THERE IS NO ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. Proper legal advice requires full disclosure of facts-not appropriate to a public forum-and attorney research time and effort which has not been expended here.

doug vagedes

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Re: Product Idea - do I really need to patent it
« Reply #3 on: 06-07-11 at 05:05 am »

Speaking from the marketing side, many times the name can be as valuable.  Especially if you have a great name, so I would certainly register it.  But a great name does not cause a product to succeed.  It takes a well-developed and properly executed marketing plan behind it.  This includes building the brand.  It's all about the marketing! 

Best of success

Doug Vagedes
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