Q: Patent/Copywrite/Trademark Question... I need some clarification.

I am starting a craft business and I have been looking into the law relevant to that. I recently read a blog post about how a person had to take down their clip art listing from Etsy because it infringed on a patent. The clip art design was a green tractor with yellow wheels. She said that there were no mentiones of John Deere anywhere in the listing and the image was just a generic looking tractor with yellow wheels. My question is: Does John Deere somehow own EVERY image of a green tractor with yellow wheels in EVERY situation? It wasn’t another tractor company or related company making products that would compete with theirs. It was just a picture and not even their logo, just a generic tractor. I’m scared to make nearly any craft to sell now at fear that everything is owned by someone else somehow. I don’t want to set myself up for constant court battles. Help!!!!!!

2 Lawyer Answers
Kevin E. Flynn
Kevin E. Flynn
PREMIUM
Answered
  • Patents Lawyer
  • Chapel Hill, NC

A: There are a lot of people that are pretty unclear on the difference between patents, trademarks, and copyrights.

I cannot see a way for John Deere to own generic images of tractors under a utility patent. They could chase protection for a particular way their actual tractor (or a toy tractor) looks under a design patent for a limited time (15 years). They can seek trademark protection. One can seek protection for a distinctive color when used for a particular product. This is rare but possible. https://en.wikipedia.org/wiki/Colour_trade_mark.

I think a good start is to ask the person what specific patent or other right John Deere asserted.

It is sad but true that attorneys for companies sometimes assert rights that are much broader than their actual rights.

While written for a different purpose, you may find that you learn something about intellectual property types in my slide set at http://bit.ly/Protecting_Advantages.

I hope this helps.

Kevin E Flynn

1 user found this answer helpful

Peter D. Mlynek
Peter D. Mlynek
Answered
  • Intellectual Property Lawyer
  • Moorestown, NJ

A: Congratulations on starting a business. Sorry that it is so difficult.

As far as your question, yes, John Deere likely owns trademarks to green tractors with yellow wheels. See, for example, http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4810:2poomx.2.55 ,

http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4810:2poomx.2.57

http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4810:2poomx.2.63

etc.

Among the 500+ trademarks, the company also owns trademarks for green farm machinery with yellow (or gold) stripes or other accents.

They have been successful in suing manufacturers of agricultural equipment for using the green and yellow combination. https://www.deere.com/en/our-company/news-and-announcements/news-releases/2017/corporate/2017oct17-deere-wins-trademark-lawsuit/

Good luck!

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