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  1. #1
    Join Date
    Jan 2014
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    Default Marketing a Product that is Almost Identical to a Competitor's Product

    Hi.

    We have a water bottle in the market.

    Recently we found an almost identical water bottle in a store.

    The cap is totally identical to ours, including the internal mechanism of the cap. The only difference is the body of the bottle which shape is just slightly different.

    Their product does not seem to have a patent or at least they don't disclose it in the item.

    we don't have a patent either.

    Is there anyone here at risk of being suit in any way? Is there a copyright infringement? What are our risks in this case and what determines who has the upper hand?

    Thanks

  2. #2
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    Default Re: Marketing a Product that is Almost Identical to a Competitor's Product

    If there are no patents, then this isn't a patent question.

    Trademarks? Trade dress? We wouldn't be able to tell you.

    You need to speak with somebody who is familiar with the products. Water bottles usually aren't anything special.

  3. #3
    Join Date
    Jan 2014
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    142

    Default Re: Marketing a Product that is Almost Identical to a Competitor's Product

    Quote Quoting floriridian
    View Post
    Hi.

    We have a water bottle in the market.

    Recently we found an almost identical water bottle in a store.

    The cap is totally identical to ours, including the internal mechanism of the cap. The only difference is the body of the bottle which shape is just slightly different.

    Their product does not seem to have a patent or at least they don't disclose it in the item.

    we don't have a patent either.

    Is there anyone here at risk of being suit in any way? Is there a copyright infringement? What are our risks in this case and what determines who has the upper hand?

    Thanks
    Under US Patent Law, they are not required to disclose whether or not they have a patent on the product. It is the potential infringee's responsibility to do a patent search if they intend to place a product on the market. In other words, even if the product does not have a "Patent Pending" or "Patented" mark on it, or a patent number, the assignee of a current (in force) patent could still sue you for infringement - if your particular design infringes on their patent "Claims"

    Now if their design is "Patent Pending", and your filing date is later then theirs, an "interference objection" would be brought up by the examiner and the later filing would be tossed out.

    I would suggest that you either hire a patent search firm to do a search, or do it yourself if you have the resources. If you find that there is a potential infringement issue, then just change your design. Then file a patent for your design. If the patent search comes up blank, you can then file for a patent for your invention, and under the recent patent reform laws, even though someone else invented your design first, if you file a patent for a similar or same item, you would get the patent. It is called "First to File"

    Under the old law, if you were granted a patent - in the US - an inventor who had proof that he or she invented your patented item prior to you filing your patent on said item could sue and take over your patent rights. Today however that is not true, the US laws were changed recently to comply with international patent treaties so now it is first to file. The old law was called "First to Invent" So even if you have the same design as someones invention in the US, if the original or true inventor did not file a patent application before coming to market, you could then file for a patent on it and win the patent. The only exception to this case, is if the inventor can prove in a court of law, that the person who was the first to file actually stole the plans for the invention. So it is still possible for the first inventor to sue, but with the law change, the bar has been set higher for the inventor to press his or her case.

    It is much better to file for a patent long before the invention comes onto market and don't show your designs to anyone unless you trust them to keep their lips sealed.

    This is why it is so important to make sure if you bring a product to market, that has not yet been patented, to file your application ASAP.

    It also depends on whether or not the designs is a "Utility Patent", or a "Design Patent". They are two very different things. If your design is a utility patent and your competitors is a design patent, it is a big gray area and you need to do some research first to determine what kinds of patents you are talking about and go from there.

    Lastly, copyright law has absolutely nothing to do with what you are talking about.

    - - - Updated - - -

    Quote Quoting Mr. Knowitall
    View Post
    If there are no patents, then this isn't a patent question.

    Trademarks? Trade dress? We wouldn't be able to tell you.

    You need to speak with somebody who is familiar with the products. Water bottles usually aren't anything special.
    Not true, there are many types of bottles of all kinds that are either patented, or among expired patents, and or considered "Prior Art" by USPTO - patented or not. You would be surprised as to how many simple consumer goods have Design Patents, or Utility Patents, or both. Also, even if a product has not been patented, but has been on the market for a long time, or even it the item was not made but was published in any way such as in for example a "do it yourself" magazine or a trade publication or scientific journal etc, such is considered "Prior Art" by USPTO, so even if an item has no patent, that does not mean you can get a patent on it, it just means you can make and sell it.

    ONe also has to consider expired patents. Even though a patent is expired, and an inventor files for a patent that violates the claims of a long expired patent, which would be considered "Prior Art", the new patent would not be granted because the new application is a copy of what was already invented. It does not matter how old the expired patent is. This is why it is so important for inventors to first do a patent search prior to making a patent filing or prior to putting an invention on the market.

    Now...if the person who has the new water bottle on the market of which the design is the same as what was in the prior art (patent) that has been expired, there is no problem because once a patent is expired, anyone can take that product to market and sell it because the expired patent on the invention is considered "Public Domain"

    Patents in the US can last up to 20 years so once a patent is expired, anyone can make and sell it. ANother reason to do a search for peace of mind.

    A Utility Patent will give the inventor up to a 20 year monopoly and that's it.

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