So I've come up with some ways to combine certain store-bought smoking accessories and am considering selling the final combinations, but first am curious about how to approach it legally. For example, a lighter or glass pipe with smoking accessories attached. How would I go about selling the combination of tools, as one or more parts may have separate patents? Would I have to protect my design or ensure that the overall configuration is not patented first? If I were to use handmade items in conjunction with store-bought items, are there any special considerations to make? If I were to use something like a glass pipe, whereas the glass blower may or may not be known by the retail seller, what considerations would I have to make then?
Attorney Daniel Ballard has provided a good response to a similar question.
This answer is not intended to be legal advice or to create an attorney-client relationship. All information posted is for educational purposes only and may not be applicable to any specific person or situation.
Mr. Ballard's answer linked above is a good one and provides good examples. Another approach is based on a some Supreme Court trademark cases nearly a century ago. It was OK to collect old spark plugs, recondition them and re-sell them, as long as there was an adequate "disclaimer" explaining what was done and their condition. It was OK to buy bulk cosmetics and repackage into smaller containers. But it was not OK to buy and re-sell product from overseas that the buyer knew were subject to a US trademark owned by someone other than the seller. These have been refined to the "no modification" rule -- you can re-sell as long as the product is the same. Whether repackaging is modification isn't necessarily an absolute. Patents also have a "first sale" rule -- once the item is physically sold it cqn be re-sold, but you can't make a new one. You're right to think about combinations -- most patents are for things that are a combination of some other things, whether it's nuts and bolts, chemicals, or wires, resistors and capacitors. The only way to evaluate is to run a patent search and see if your combination is the subject of a claim of a valid and enforeceable patent.
This answer is written to explain situations which may come up involving intellectual property law issues. It does not give specific legal advice about specific fact situations. If you have a specific fact situation in mind you should ask for professional legal advice about the relevant facts. Seemingly minor changes in facts may change a legal opinion dramatically. Space here does not permit an explanation of all the variables in complex legal areas. Dave Brezina is an Illinois lawyer and his profession is regulated under the authority of the Supreme Court of Illinois. Although he represents clients nationally and internationally, his law practice is performed in Illinois and is not subject to regulation by other states. Dave Brezina is also a Registered Patent Attorney and a patent practice is regulated by the US Patent and Trademark Office a Federal agency and is not subject to regulation by the states. The firm, Ladas & Parry, LLP, has attorneys admitted and offices in at least Illinois, New York and California. Finally, do not post confidential information. There is not an attorney client relationship created simply by correspondence or communication with the author of this site.
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