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Protecting A Product From Copycats
Q: A toy retailer requested a number of samples and specifications from our company for a craft kit we have been producing and selling. After several months of “evaluation,” the company said they weren’t going to carry our product. But we’ve realized they have been making what we believe is a copy of our product. What are our options?
A: Like fashion designers, toy makers have a hard time warding off copycats, unless they have an idea so unusual it’s patentable or the believed offender signed a nondisclosure agreement promising it wouldn’t steal the idea.
Absent such protections, it’s usually quite difficult to win infringement claims. “Most of the things that come up in the toy market aren’t really new ideas, even though the inventors might think they are,” says Rich Stim, a San Francisco intellectual-property lawyer.
Still, it’s worth getting a lawyer to investigate the merits of your case. If the toy maker replicated your product and packaging to the point of customer confusion or copied something that’s protected under trademark or copyright law, you might have a strong legal case.
But it’s more probable the toy maker altered your design just enough to dodge any legal issues, says Elliott Stein, a Princeton, N.J., intellectual-property lawyer.
Photo by MSDesigns.
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