Product Sellers Guide To Patents And Trademarks

Whether you’re just starting out in the physical product selling world or you’ve been around awhile, trademarks and patents are an important topic for you to keep on top of. Even if you’re not interested in filing for either one — you have to make sure you’re not violating someone else’s. Yes, it’s a scary world out there.

I think Vesta of Peppermint baby carrier fame, has gone along way in clearing up some confusion today with her trademark and patent post at TheBabywearer.com Forums.

Vesta talked to an intellectual property attorney recently and shared her opinion of what that attorney recommended (with the caveat that this is HER interpretation of what the attorney said and should only be considered, not acted upon):

OK, there are 5 ways to categorize words as potential trademarks, an example, and your chances of succeeding with the TM:
1. Generic - e.g. “bread”. You will never get this trademark.
2. Descriptive - e.g. a) “soft” bread or b) “wholly goodness” bread. You could not likely get a. But you may be able to get b, if you can prove that you’ve been using it for 5 years consecutively and that it has come to hold a secondary meaning that is associated with your product.
3. Suggestive - e.g. “crusty” bread. He also mentioned “Ivory” soap. Even though other soaps may be ivory, and other breads may be crusty, these are usually TMable.
4. Arbitrary - e.g. “gecko” underwear (or “Peppermint” baby carriers!). These words have real meanings, but do not, under normal circumstances, have anything to do with the product being sold. Highly TMable.
5. Fanciful - e.g. “kodak” cameras (or “EllaRoo” baby carriers!). Made up words. Again, absolutely TMable.

This information is very important in any product selling industry, especially for newbies who haven’t created their business and names. Hint: You’re better off creating an arbitrary or fanciful name for your business and products than using a generic, descriptive or suggestive name. Be creative!

Additionally, you also need to go to the United States Patent and Trademark Office website to research any business or product name ideas you come up with, before you commit to them.

If you’re already selling products with generic or descriptive terms, you may need to consider renaming your product or coming out with a new and improved version — that includes at least a new name. I recommend you talk to your attorney about this.

Now for the patents: This topic has been hashed and rehashed almost daily in the baby wearing world lately. And recently, much discussion occurred in the cloth diapering world.

According to Vesta’s lawyer, the legal aspects of patents come down to this:

To succeed with a patent, you must (besides jumping through all of the administrative hoops and financial hurdles and professional drawings) demonstrate four things:
1. Novelty - that you have actually invented something that has never been seen in another single source. (I think this is the one that kills many patent apps. E.g. if you take a soft baby carrier, like a mei tai, and modify it using the latest backpack technology, you haven’t really invented anything, but you’ve just used known technology in a new context. You could also think of it the opposite way: If you take current backpack technology, and modify it to carry a baby, still nothing new.)
2. That the innovation you made was not obvious. (I can’t remember his example, but something like using buckles to adjust something, rather than rings comes to mind. Or using a new fabric to make something (e.g. solarveil instead of cotton, etc. I think this is another one that would kill a patent app pretty easily. To stay with the mei tai example, if you just add buckles and padding to a mei tai, you’ve done something that’s pretty darn obvious to many of us who’ve tried an unpadded mei tai.)
3. That the innovation was functional, not just aesthetic. (Pretty clear, I think.)
4. You have to be able to teach someone else, in writing and drawings, to do this new thing. (Doesn’t apply to us, but more to chemical processes and such.)

Two products that were the topic of many heated discussions on parenting forums when the company owners decided to seek a patent include the Taggies blanket and the Fuzzi Bunz cloth diaper. If you were around online parenting forum circles in 2002 and 2003, you may have heard the about these.

Anyway, it’s a very good idea to do some patent research before you start developing a product. If a product is already patented, the only way you’re going to be able to sell it is if the patent holder sells you a license to do so.

In any case, I advise you to consult and attorney for patent research. You can do some preliminary research at sites like Patent Storm or go directly to the United States Patent and Trademark Office website. But again, always seek the opinion of an attorney.