I have recently been informed that one of my products that I handmake is strikingly similar to another product on the same site that I sell on. I did NOT copy this item, but it does look very similar in style, but has many different features. I do not think she has a patent on her item, although her "schtick" name for it may be legally registered. I do not call mine the same thing. Can this person sue me for this?
The items are most likely patentable. They are both diaper changing clutches with the changing pad attached. Although the concept is not novel, the design is. She does not have a patent on her item, so does is this still infringement even though mine is not exactly the same and has different features. The general layout of it is the same when it is opened up (as far as placement of pad and pockets), but they are folded, closed, sized, and look different. And they use different materials. And mine has an added extra baggy pocket feature.
1st question is whether either of these products is copyrightable. Copyrights are for creative expressions like books, movies, songs, screenplays, and paintings. You don't state what these products are, but most products aren't expressive works and aren't copyrightable. If and only if there's a copyright on this competitive product, then the next question is whether yours is substantially similar so as to be infringing. No one on Avo can answer that without comparing them side by side and whoever told you they were "strikingly similar," if that person wasn't an IP lawyer, isn't qualfied to determine similarity for IP purposes.
You mention features but no real description of these products. If they're useful, as well as novel and not obvious, then they're possibly patentable.
As for trademark, if your trademark on your product isn't confusingly similar to your competitor's trademark "shtick" name -- then there's no TM infringement. Note that it doesn't have to be the SAME name, it only has to be CONFUSINGLY SIMILAR to consumers to be infringing.
See your own IP lawyer to fully disclose the facts.
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.
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Intellectual Property Law Attorney
It's quite rare for small business crafter's to seek patent protection for their products. When they do, they proudly mark their product with their patent number. While not certain, of course, it's a reasonable assumption, therefore, that the other person's product is not patented.
In any event, it's not difficult to check. Visit http://patft.uspto.gov/netahtml/PTO/search-bool.html and search via the other company's name as assignee / the person who owns that company as inventor / and key terms in the abstract. Or better yet hire a patent attorney to do this "knock out" search. If patented, then you need a patent attorney to compare its claims with your product. The rule is that if the patent claims elements A, B, and C combined in a particular way and your product has those elements arranged that was along with one or more other elements then you still infringe.
If we assume that the other person's product is not patented then the next question is whether you've infringed the other product's "trade dress" by selling a "strikingly similar" looking product. The first chore in that analysis is to define the supposed trade dress -- and to do that the "functional" elements of the other person's product are excluded. So ... if that product has non-functional elements that are novel then you need to speak with a trademark attorney to continue this trade dress infringement analysis.
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Patent Application Attorney
A product that is practical and has ornamental value may be protected by a design patent. A patent protects not only the expression but also the idea/concept behind the expression. Having said that, it is not very common that people apply for a design patent, so the protection remaining derives from copyright.
Copyright protects only the tangible artistic expression, not the idea, thus if you did not copy but your product is similar you have nothing to fear and may be entitled to copyright. You should check with a copyright attorney, such as myself, to actually determine whether there is copyright infringement.
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