Newark, NJ asked in Products Liability, Copyright and Trademark for New Jersey

Q: Is it legal to sell a product that has already been made? Even though I’d be making it myself but changing the name

I’d like to start my own business selling dog bandanas with a scrunchie back rather than a knot, which I saw the idea from company Hunnypotpup. I also wanted to make matching scrunchies with it, which that idea comes from the Foggy dog. I believe they are both trademarked. Is it legal to use both those product concepts and sell them if I create my own name for them and a different logo? I want to make sure this is legally acceptable before I start anything, thank you in advance.

1 Lawyer Answer
Emmanuel Coffy
Emmanuel Coffy pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Trademarks Lawyer
  • Maplewood, NJ
  • Licensed in New Jersey

A: Here are some general points to consider based on your description:

Trademark vs. Copyright vs. Patent:

Trademark protects brand names, logos, and other brand identifiers from being used by others. It doesn't protect the idea or concept itself.

Copyright protects original works of authorship, such as literature, music, and graphic designs. It doesn't protect functional aspects of a design.

Patent protects new inventions or discoveries. If the way the dog bandana with a scrunchie back functions is patented, then you may not be able to make and sell that item without infringing on that patent.

Product Concepts:

Generally, you can legally sell products that are similar to others as long as you aren't infringing on any trademarks, copyrights, or patents.

Creating a product inspired by another product is typically legal as long as you aren't copying specific copyrighted designs or violating any patents. Additionally, your branding and naming should be distinct to avoid any trademark issues.

If the idea of the scrunchie back or the matching scrunchies is patented, it might be problematic to recreate and sell them.

Potential Issues:

If you use the same or a confusingly similar name, logo, or branding to another company, you might face trademark infringement claims.

If the specific designs or patterns on the bandanas are copied, you might face copyright infringement claims, even if you change the name.

Legally Acceptable:

It would generally be legal to sell a product that is similar or inspired by another product, but the specifics matter. The key is ensuring that you aren't infringing on trademarks, copyrights, or patents.

Creating your products with original designs, names, and logos can help avoid potential legal issues. Also, ensure that the functional aspects (e.g., the scrunchie mechanism) aren't patented or proprietary to the original creator.

Steps to Take:

Research: Before starting, conduct thorough research to see if there are any patents related to the dog bandanas with scrunchie backs or matching scrunchies.

Consultation: It's advisable to consult with an Intellectual Property (IP) Attorney to provide guidance specific to your situation and help ensure you aren't inadvertently infringing on another company's rights.

Brand Differentiation: Ensure your branding, naming, and logo are unique to avoid any potential trademark issues.

In summary, while selling products inspired by others can be legally acceptable, it's essential to ensure that you're not infringing on any Intellectual Property rights (IP). An Attorney can provide more precise guidance tailored to your specific situation.

Practical Steps:

Hire an Attorney: The above points are NOT legal advice nor do they create an Attorney-client relationship. If you haven't already, it's critical to hire an Attorney who specializes in IP law to guide you through this process. They can provide specific advice tailored to your situation.

Leonard R. Boyer agrees with this answer

1 user found this answer helpful

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.