Q: My product was flagged for IP infringement. It is for the color yellow but others are still selling the color yellow.
I have a product that I have listed on Amazon.com and been selling for over 8 months without any issues. We were recently flagged for issues regarding our product's handle pattern design which was protected by a patent. We understand that we needed to change the handle so since we have changed the handle and resumed selling the same product but with new handles and not had any further issues with other colors than yellow. However, at the same time when we were flagged for the handles, they sent us a message that they company has a colormark for the color Yellow. This does not make sense because there are numerous other competitors who have been selling the color yellow for years and not had any issues and they are still selling at this time. I believe that we were flagged for the handles and they are enforceable, but the yellow color is not enforceable and they attached this to the message in an attempt to prohibit us to sell the product all together. Please tell me your thoughts.
A:
Forms of IP infringement include trademark infringement and trade dress infringement. They are covered by different laws and are measured by different criteria. The standard for trademark infringement is likelihood of confusion in the market place as to the source of the goods.
This is the sort of issue that generally requires review by a qualified attorney. More facts would be needed by the attorney. It is possible that there is more at issue here than the color yellow. Perhaps the use of the color yellow was "flagged" because it was in a special context. You also need to think about your cost exposure for possible infringement versus the cost of defense and also consider how much the issue is worth to you in terms of sales.
Based on the very limited factual description, it seems like it would be unlikely that this matter could be properly resolved without the help of an attorney.
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