Delicious Little Candies
Posted Thursday, August 06, 2009 by Katie Long.
NPR recently aired an interesting copyright infringement story about PEZ Candy Inc. Pez is seeking to have its copyrights enforced against the owner/operators of a PEZ candy dispenser museum. The small museum located in California houses over 800 pieces of PEZ memorabilia. According to the story, it is not the museum itself that PEZ Candy Inc. objects to, but rather the sale of non official PEZ gear that is so offensive. PEZ is protecting its rights by seeking an injunction against the museum. The museum owners feel unfairly attacked since they see themselves and free advertisement for the candy company. The museum charges admission and sells items such as shirts, gift packs, books, and pens. To allow the museum to sell unofficial merchandise will severely dilute the value of Pez’s intellectual property. On the other hand, to go after the small business owner makes Pez look like a big bad corporation. Pez Candy Inc. is placed in an interesting position in situations like this. Check out the NPR article here: http://www.npr.org/templates/story/story.php?storyId=106859982 .
Response After Final
Posted Friday, July 31, 2009 by Jim Ruttler.
As set forth in a previous entry, there are three ways to respond to a final office action: file a Request for Continued Examination (RCE), file a Notice of Appeal (NOA), or file a continuation application. However, each of these options involves additional expense, so it is desirable to maximize the opportunities to converse with the examiner prior to incurring the additional expense. One way to do this is to file a response to the final office action and follow up this response with a phone call to the examiner. Doing so can result in the examiner reversing his or her position and allowing some claimed subject matter. And, even if the examiner finds the response unpersuasive, you will have benefited from additional consideration by the examiner and there will still be the opportunity to file the RCE, NOA, or continuation application. However, you’ll need to be aware that filing a response to final does not toll the deadlines for filing an RCE, NOA, or continuation application.
Posted Monday, July 27, 2009 by Katie Long.
Trademarks protection is for more than just business names. Other mark forms eligible for federal trademark registration include numbers, symbols, slogans, tag lines, sounds, smells, package designs, and colors. When attempting to register a mark, regardless of its form, the Trademark Office considers whether or not the mark creates a separate commercial impression which identifies and distinguishes the goods of one party from the goods of another. While the spectrum of marks that theoretically can be registered is vast, in practice it can be difficult to get some of the more unconventional marks (color, sound, smell) registered. To obtain registration of an unconventional mark, one must have a heavily supported showing of secondary meaning. Secondary meaning is attained when the consuming public recognizes the mark in its primary sense, as well as recognizing the mark as an indication of the source of the associated product. Some interesting marks that have been able to show this heightened level of recognition include Owens-Corning Fiberglass Corporation’s distinctive pink coloring of their fiberglass insulation and the National broadcasting Company’s musical notes of g, e, and c played on the chimes.
Posted Friday, July 17, 2009 by Katie Long.
Have you ever heard someone’s new idea and thought to yourself, “That is so obvious! Why didn’t I think of that?!” Sometimes the best inventions are ones which are so obvious that we kick ourselves for not thinking of them ourselves. On the other hand, the actual inventors of such inventions are sometimes kicking themselves as well…but for different reasons. In order for a new invention to be patentable, the invention must be not only novel, but must also be non-obvious. This fact is hard to swallow if you have just invented some new, useful item that is highly marketable but not such a significant advance as to warrant patent protection. While an invention may not be eligible for patent protection, a brand used in sales of the invention may be eligible for trademark protection. And, through the use of clever and strategic branding, inventors can become leaders in the market by becoming a desired source for the invention, even if that invention is also sold by others.
More on Design Patents
Posted Thursday, July 16, 2009 by Jim Ruttler.
A design patent is a special type of patent that protects ornamental designs of existing articles of manufacture. In other words, design patents protect the shape, ornamentation, or surface indicia of a product. For example, design patents would be appropriate for unique tire tread designs, bottle shapes, handbag shapes, and even computer mouse shapes. Once obtained, a design patent protects against the making, using, selling, and importing of similarly designed products.
There are few limitations to design patents. First, the design must obviously be new and cannot just be a minor modification to existing designs. Second, the design cannot be primarily functional. Third, design patents only protect the design of a product and not its underlying functionality.
A design patent can also be obtained in conjunction with a trademark registration, which can also be secured for unique product shapes. There are some differences between design patents and trademark registrations, but they can nicely overlap to enhance the protection of a unique product shape.
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