Q: Is it legal to "steal" a concept? Say a company makes a product, and I feel I could redesign it and make it better.

A: Thanks for caring enough about doing the right thing to ask a question. The technical term for what you are asking is called freedom to operate (FTO) or sometimes "clearance". You are asking whether there are concrete legal rights that exist that would impinge on your freedom to operate in the manner you wish to do.

One does not copyright an idea. Copyright covers the specific expression of an idea. Various construction toy components (Lego blocks, Lincoln logs, Erector sets) would not be a good candidate for copyright protection. These things are better protected by utility patents, design patents, or a less common flavor of trademarks called trade dress.

Information about utility patents can be found at http://www.flynniplaw.com/services/legal-services/united-states-utility-patents. An introduction to design patents can be found at http://www.flynniplaw.com/services/legal-services/united-states-design-patents.

You may want to do some searching for relevant patents using the tools taught here http://bit.ly/Patent_Searching. A good cross-check is to look for patent assets assigned to the company with the existing product. https://assignment.uspto.gov/patent/index.html#/patent/search There is also a link on that page to jump to trademark assignments that would include trade dress.

A general description of Freedom to Operate work is found http://www.flynniplaw.com/services/legal-services/143-freedom-to-operate.

If you find patents or pending applications that are a potential problem then it is time for a patent attorney to sort out whether it is a near miss or a real problem. Sometimes the patent has expired or has lapsed for failure to pay a maintenance fee to renew the patent rights. Sometimes you can modify your design a bit and be clear of the patent. See http://www.flynniplaw.com/services/legal-services/freedom-to-operate/design-around-guidance.

In some instances, one can take a license from the original patent holder but that adds another layer of costs and some entrepreneurs do not want to explore that option.

Trade dress protection is normally associated with very dominant products. https://en.wikipedia.org/wiki/Trade_dress To check on the existence of registered rights for trade dress it is best to talk with an attorney that is familiar with trade dress and the tools for searching for these rights.

A FEW WARNINGS

1) There may be patent applications ahead of you in the pipeline that have not surfaced yet as published applications. So searching may not identify all potential problems. Searching will reduce your risk of a problem but not drive the risk to zero.

2) Each country has its own patents and trademarks. So being free to operate in the US does not necessarily mean you are free to operate in Canada or Australia. The US is such a big market that many companies located outside of the US do seek patents here so our list of patents is well-developed but there are patent rights other places that do not show up here.

NOTE -- in some countries there is a lesser form or utility patent called a utility model. This type is not available in the US and is easier to get. So an item that would not be able to get a normal utility patent in the US may have a utility model patent in another country. https://en.wikipedia.org/wiki/Utility_model

3)There are landmines associated with comparison advertising and you should get competent legal advice before mentioning other company's products in your advertising.

FINAL WORDS

If people put products into the marketplace without securing patents or other proprietary rights, they are donating that idea to the public domain and other people can compete with them. Think about all the hot items for Christmas that have a dozen competitor products the following year.

Good luck.

Kevin E Flynn