I am an LLC who is just getting started with an online business.
I have some ideas for products but will not be patenting or producing (at this point) a product from a raw material. I intend to use generic, ready-made products (i.e. plastic cup, rubbber ball, hacky-sack, etc.) from a mass produced source and apply my trade mark to it.
Is this something that I can legally do? In other words, can I buy a thousand rubber balls, put my trade mark on them and then sell them as my special kind of rubber ball?
Thanks in advance!
I think businessmen believe that a trademark is critical for selling, considering the advertising budgets of some of the bigs and the amount EXXON spent on getting that mark established.
I think you are safe in buying generic items and marking them, even if they are patented. You would be protected by the “first sale doctrine,” holding that the first sale exhausts the patent protection. Once the goods have gone into the stream of commerce the patent holder cannot further restrict their sale or charge royalties. You should definitely hire a lawyer and disclose all the facts to her to get a proper legal opinion on your privilege to do this.
DISCLAIMERâ€”This answer is for informational purposes only under the AVVO system, its terms and conditions. It is not intended as specific legal advice regarding your question. The answer could be different if all the facts were known. This answer does not establish an attorney client relationship. I am admitted only in California. (Bryant) Keith Martin sbbizlaw.com
The function of trademarks is to indicate the source of products, and associated issues of quality, goodwill, etc. So long as the application of your trademark does not confuse consumers as to the source of the product, you should have no problem. the safest would be to confirm this with the wholesaler of your inventory.
The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.
Well, I would have to say "that depends." In order to be able to receive a sound legal opinion on such a case, you would have to hire a business lawyer, and have them give you a written opinion based on the specifics of your case, after disclosing confidential information to them, and paying them a fee. I think this might be worthwhile.
In general, I can tell you that having a registered trademark has less to do with your ability to sell your products than it does with your ability to keep others from using your mark. A trademark protects a name. A patent protects a product. In the scenario you described, you don't have any exclusive rights to the product you are selling -- someone else invented and manufactured it, and you are just reselling it. Whether you have the legal right to resell the product depends on two things: (1) Are there any limitations in the agreement with the people you are buying the product from preventing you from reselling or rebranding it, and (2) does anyone else have a patent or other protection involved with the product that you would be violating. (Just because you are buying the product from someone else does not relieve you from liability if there is infringement).
I would strongly suggest that you consult with a competent attorney and pay them a few hundred dollars for their advice. As you are starting a new business, it will be worthwhile to have an ongoing reputation with an attorney you know and trust, and can turn to from time to time for specific advice. That is better done in person than on a general information website like this one.
Secondly, whatever you do, I recommend that you also invest in a good Commercial GEneral Liability insurance policy with advertising injury coverage. This will give you some protection for any claims against you from products liability or patent/trademark infringement, etc.
Good luck with your new business!
The opinions expressed in this answer are meant for educational and public service purposes. Requesting general information about the law on a public website should never be a substitute for a personal consultation with an attorney who can give specific legal advice tailored to the facts of an individual case. Please be aware that Robert Hogan is licensed only in Texas and New Mexico, and that any opinions given are not meant to apply outside of these states. No attorney-client relationship is intended by answering questions or emails.
Patent Application Attorney
It is important to understand the purposes and differences between trademarks and patents. Trademarks are indicators that are used to identify products or services with the trademark owner. The goal of trademark protection is to protect consumers and to ensure that when they buy or use a product conveying a specific mark they can quickly and confidently associate that product with the trademark owner. On the other hand, patents exist to give the patent owner the exclusive right to make, use, sell, or offer to sell a patented device or method. First of all, you will want to ensure that the products you would put your mark on are not patented. Also, many of the products you mention may already be trademarked and you would likely not want to be reselling the same product under a different mark. This would go against the trademark protection's goal of preventing consumer confusion.
I would highly encourage you to speak with a business/intellectual property attorney to determine what your options are with regard to specific products. As one of the other attorneys mentioned, it will likely be a good idea for your business to be associated with a competent business attorney that can help you with this specific issue as well as other issues you are likely to face with your business.