I would like to sell a bracelet. The bracelet, a leather bracelet, could be handmade except for the unique buckle clasp.
I went to the USPTO to see if the seller of this bracelet with this particular buckle patented the buckle. I entered the name of the seller and the name of the store & did not find any patent or trademark for the buckle.
With that said, after months of searching, I have finally found the manufacturer of this buckle.
Can I handmake a bracelet using this unique buckle?
Or, can I buy leather bracelets premade by the manufacturer with this buckle?
My thoughts are if the seller does not have a patent, I should be able, at a minimum, to hand make the bracelet with the buckle.
Should I be able to do both, hand make or buy premade bracelets from the manufacturer?
If the clasp is currently patented then you can't make it or sell it either alone or as part of a bracelet.
To determine if the clasp is patented, look at its promotional material and at its packaging -- if no patent number is listed then ask the manufacturer if its clasp is patented. You can also try to find the clasp among the currently-in-force design patents for clasps and buckles [visit the links below to view some of those patents].
The general rules:
If the clasp is NOT patented then you may lawfully make them or buy them [from anyone], attach them to your bracelets, and then sell the bracelets.
Moreover, if the clasp IS patented and you buy genuine clasps made by or authorized by its manufacturer then you can still lawfully attach them to your bracelets and then sell the bracelets.
But if the clasp is patented and you buy any such clasps that were NOT made by or authorized by its manufacturer then you cannot lawfully attach them to your bracelets and then sell the bracelets.
There's a wrinkle: IF the design of the clasp readily conveys to a reasonable jewelry purchaser the company that made the clasp [by virtue of, as you say, its "unique" design] then that particular design may serve as "trade dress" which distinguishes that company's products from other companies' products.
In short, you should spend some time with your own Maryland-licensed intellectual property attorney to help you work through those concerns. Good luck.
The above response is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
The Asker is preparing to go into business to manufacture and or buy a product from a manufacturer. The Asker has searched for patents, has not found a patent but has found a company selling the product. The Patent Search is a legal professional act requiring knowledge of patent law. The Manufacturer may have exclusive rights. The Asker must see Intellectual Property counsel.
My comments have been made without discussion. An attorney client relationship has not been established. There may be conflicts which prohibit my providing you with specific legal guidance. Any contact with you beyond these few general words will start with a disclosure of opposing parties so that a conflict check can be made. You should discuss with an attorney.
Whether or not the buckle is covered by a design patent, I think you need to consider whether your activity could result in a claim of copyright infringement. You should consult with IP counsel to delve further. Copyright rights attach immediately as soon as the design is fixed in a way that others can perceive it. Such rights do not require any special application to come into existence. For all you know, the manufacturer may not have all of the rights it needs to sell the bracelets with the buckle.
LEGAL DISCLAIMER: Please note that this comment does not constitute legal advice nor has an attorney-client relationship been created.The law may vary depending on the state in which you reside or the jurisdiction where the activity took place. This comment is intended only to give some direction in which to seek further guidance. If you think my post was helpful, please check the thumbs up tab located below.
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