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Does selling handmade goods that resemble popular toys/widgets require licensing agreement to avoid trademark infringement?

Boston, MA |

If I take a picture of a part of a particular toy/widget that I own, and I put that picture in handmade goods to make it look like the toy/widget in appearance - do I need to obtain licensing/written permission to do that (even though I own the toy/widget, the photograph, and the completed handcrafted goods)? The end product will resemble the actual toy/widget. The handcrafted goods are meant to be consumed and are perishable and are intended to be sold. Thanks in advance!

I want to add that you can still somewhat tell that the handmade good is the targeted toy/widget without the picture of the part, but with the picture, it is almost instantly recognized. In the same line of thought, if the handmade object is made without any use of pictures, but the shape and parts resemble a particular popular toy/widget, and I'm pretty sure the object is copyrighted, would I need explicit permission for this kind of derivitive work?

Attorney Answers 3

  1. I think that you need to consult with an intellectual property attorney before you invest too much time and money into this venture - there are just too many unknowns to answer the question here.

  2. Query: "[w]ould I need explicit permission for this kind of derivitive work?

    Answer. You want to sell a 'toy/widget" that looks identical to someone else's toy/widget and wonder if that's lawful? The short answer is clearly no. Without more facts no one can tell under what body of law it is that makes your conduct unlawful but, generally, the law of unfair competition (state and/or federal) proscribes such conduct. You would need a license from the company that owns the rights to make the underlying toy/widget.

  3. The key to what you want to do, and why it's infringement, is that it's recognizably this original toy, and you're trading on that recgnizability to make your version of it. Without more ifnormation on what it is you're copying, it may be trademark infringement or trade dress infringement - probably not copyright infringement.

    Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.