Should I constantly worry about about trademark/patent infringement?

[MakeMoreMoves]

Hey everyone,

I need some serious relief. Every time I want to sell something, in the back of my head I keep thinking I am going to infringe on a trademark or patent without even knowing it. So, I search. So for patents and trademarks I use USPTO and google patent search. Even after I search these I feel uneasy like I didn't do a good search or I could have missed one thing. When I do see a patent similar to mine, its like "Maybe I am infringing? Maybe not?" I can never say for sure.

It doesn't sound feasible to hire a professional to search since I am just a small time entrepreneur right now. The cost of professional search will probably cost more than the entire lot of products I plan to sell and all other business costs. The items that I plan to sell are less $20.

The other part of me is thinking that I am worrying way too much and should just say screw it and source/sell anything without thinking about it.

Example, I get a sample from alibaba for a jump rope. The ball bearing on this jump rope looks good and works well. Shit..., maybe there is a patent on it. I'll find something else...so on and so on.

Trademark question as well. If I get a DBA for a XYZ Company, I realize that it is not registered under the secretary of state, but rather under each town. So, I did a search for available business names under secretary of state. I type in XYZ Company. It says its available. But if I have a DBA and already put a TM on my logo and business name and then someone else has XYZ company, LLC and they put TM on the same business name what happens?

Questions like these are so damn hard to find on the internet, I get like scraps of information from each webpage.

Should I stop worrying and hope that sometime in the future I don't ever infringe on a patent? Because to me if I infringe on a patent its game over. They will sue me to oblivion since its a DBA under my SSN, I will pretty much be dead meat

EDIT: Or another bad scenario, get told to stop selling. Have hundreds of stuck inventory. Example, Thing like the theracane. There has got to be a patent on that. But yet I see other companies selling them.

 

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[Jon L]

It sounds like you're selling physical products, and I don't know much about that. I can tell you what happens in the software world, though:

There is not a single piece of software out there that doesn't violate someone's patent. Therefore, no one bothers to check before they publish. We worry about this stuff when we get big enough to sue. Software, though, might be different from physical products. They hand out software patents for the most ridiculously simply things - stuff that a 15 year old coding in his mom's basement could come up with.

I'm guessing its not much different for physical products.

If I were you, I'd start selling stuff and maybe run this by a lawyer. I strongly suspect that the most that would happen to you is that the patent owner would send you a cease and desist letter, at which time you'd need to stop selling that particular item.

 

[BlackPebbles]

Think about this way... suing people costs a lot of money. Lawyers are an expensive little playmate.

If you are messing with big companies and obvious trademarks then it's easy for them to take you on and shut you down.

If you come up with an idea that is not easily uncoverable with a reasonable trademark/patent search then take a gamble.

Average Joe does not have the resources to pursue you. Agreed with above, a "strongly-worded letter" is always preferable to litigation. Law is about big balls, and who can be bothered.

Take that risk as you will. Don't let it cripple your efforts.

You only have to look around Ebay at all the products from China that are direct rip-offs of their original counterparts to see that a lot people just don't give a rat's about IP law and patents.

Naughtier things have happened.

 

[David Young]

The first thing is not to confuse trademark and patent.
If you are in any way trying to cash in on someone else's brand or deliberately trying to confuse the customer then your are likely infringing on a trademark. However, if you are selling the same product but clearly differentiating yourself from other brands then you have nothing to worry about. For example I have seen T shirts on sale in a local market with a Gucci logo on the tag- on closer inspection its say Cucci not Gucci. This is clearly playing on the Gucci brand and/or trying to con the customer and is therefore an issue. However, the same plain t shirt (same product) without the logo or a different logo on the label is not a problem. Similarly I could use the Gucci name is a completely different industry, unrelated to fashion, without concern as I would not be trying to sell off the back off on another companies brand value. This is why when you apply for a trademark you need to state the class- area or business or product type- that the trademark will be applied to.

When it comes to patent it comes down to prior art and genuine innovation. If the item you are selling could have been developed simply by extrapolating the existing state-of art then its fair game. So putting a better bearing in a jump rope sounds like a logical next step in jump rope development so could not be covered by a patent. However this does not mean a patent has not been granted. The patent system is not perfect. A few year back a guys patented a new widget. When the patent was published he announced that the new widget was the in fact the wheel - which on closer inspection of the patent was self evident - but demonstrated the problem with the system. therefore unless your product has some incredible novel aspect it is unlikely to be patented- it is also worth remember that patents don't last for ever- only 25 years I think. I think this is why there has been a sudden influx of Lego copies in recent years- Lego's original patent for the building blocks has expired- thought he trademark is still in force.

 

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[Rudynate]

When it comes to patent it comes down to prior art and genuine innovation. If the item you are selling could have been developed simply by extrapolating the existing state-of art then its fair game.

You're talking about patentability - is a device novel and non-obvious? The OP is talking about infringement - whether the claims of an issued patent "read on" the device he/she is selling. Different issues that shouldn't be confused.

 

[Rudynate]

Hey everyone,

I need some serious relief. Every time I want to sell something, in the back of my head I keep thinking I am going to infringe on a trademark or patent without even knowing it. So, I search. So for patents and trademarks I use USPTO and google patent search. Even after I search these I feel uneasy like I didn't do a good search or I could have missed one thing. When I do see a patent similar to mine, its like "Maybe I am infringing? Maybe not?" I can never say for sure.

It doesn't sound feasible to hire a professional to search since I am just a small time entrepreneur right now. The cost of professional search will probably cost more than the entire lot of products I plan to sell and all other business costs. The items that I plan to sell are less $20.

The other part of me is thinking that I am worrying way too much and should just say screw it and source/sell anything without thinking about it.

Example, I get a sample from alibaba for a jump rope. The ball bearing on this jump rope looks good and works well. Shit..., maybe there is a patent on it. I'll find something else...so on and so on.

Trademark question as well. If I get a DBA for a XYZ Company, I realize that it is not registered under the secretary of state, but rather under each town. So, I did a search for available business names under secretary of state. I type in XYZ Company. It says its available. But if I have a DBA and already put a TM on my logo and business name and then someone else has XYZ company, LLC and they put TM on the same business name what happens?

Questions like these are so damn hard to find on the internet, I get like scraps of information from each webpage.

Should I stop worrying and hope that sometime in the future I don't ever infringe on a patent? Because to me if I infringe on a patent its game over. They will sue me to oblivion since its a DBA under my SSN, I will pretty much be dead meat

EDIT: Or another bad scenario, get told to stop selling. Have hundreds of stuck inventory. Example, Thing like the theracane. There has got to be a patent on that. But yet I see other companies selling them.

You're right to be concerned about inadvertently infringing someone else's IP. But you also shouldn't let it keep you up at night. It's another risk of doing business, another of the many risks an entrepreneur has to be mindful of.

I'm a patent attorney, and I advise entrepreneurs that are just starting out all the time. How much you need to worry about and spend on intellectual property is a risk/benefit analysis. And you have already done that. You said that with the price point of your products, it wouldn't be feasible to consult an attorney for a product clearance every time you introduce something new. But, within your budget, you're doing what you can. You're doing your own patent searches and making an honest effort to locate IP that you might infringe. If something turns up that you are really concerned about, you could have an attorney look it over. He/she can tell you, informally, whether it is something to be concerned about. Having a written opinion drafted with a full infringement/non-infringement analysis will cost tens of thousands of dollars and is likely not necessary for you.


The truth is, IP litigation is mostly something that happens in big business, because it's incredibly expensive. Patent attorneys refer to patent litigation as "the sport of kings." Outside of the big company world, nobody really wants to sue, because it is so costly. They want to settle. So, if somebody contacts you, it is unlikely that they want to sue. They would much rather negotiate a license, or just see you stop selling the product.

Do not ignore letters from IP holders who are alleging infringement. A company I worked for years ago ignored a letter from one of the first patent trolls and it ended up costing them 30 million dollars, when, early on, they could have negotiated a license.

 

[David Young]

You're talking about patentability - is a device novel and non-obvious? The OP is talking about infringement - whether the claims of an issued patent "read on" the device he/she is selling. Different issues that shouldn't be confused.

I understands your position but my original point still holds, if someone is selling a product that can not be patented then they can be reassured that a valid patent has not been issued. Different side of the same coin.

 

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[Rudynate]

I understands your position but my original point still holds, if someone is selling a product that can not be patented then they can be reassured that a valid patent has not been issued. Different side of the same coin.

In theory, that's true. But those determinations are extremely nuanced. It would be foolish for someone to deliberately infringe an issued patent on the assumption that the patent was not valid. There is a strong presumption of validity for any issued patent. It's a risk a big company with deep pockets might take, but not the sort of thing an entrepreneur should think about doing.

 

[sWALK90]

I think you would just get a Cease and Desist Letter...if someone notices you...i wouldn't worry about it.

 

[David Young]

In theory, that's true. But those determinations are extremely nuanced. It would be foolish for someone to deliberately infringe an issued patent on the assumption that the patent was not valid. There is a strong presumption of validity for any issued patent. It's a risk a big company with deep pockets might take, but not the sort of thing an entrepreneur should think about doing.

There is certainly a risk and I am not suggesting that anyone deliberate infringes a patent that might be valid. However, if is no evidence of a patent having been granted and the product under discussion is not patentable then I think you can feel reasonably safe. I would also say if someone comes across a patent that is not valid the issue should be raised. It is an issue in the area I work and one that can limit innovation rather than promote it.

 

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[Rudynate]

There is certainly a risk and I am not suggesting that anyone deliberate infringes a patent that might be valid. However, if is no evidence of a patent having been granted and the product under discussion is not patentable then I think you can feel reasonably safe. I would also say if someone comes across a patent that is not valid the issue should be raised. It is an issue in the area I work and one that can limit innovation rather than promote it.

I agree, in part. If a reasonable patent search doesn't reveal any blocking patents, that should be a green light. The problem is that determinations, such as whether a device already in the marketplace is patentable are not simple, black & white determinations. Your jump rope example, for instance. If one incorporated a known bearing assembly into a known jump rope, such that each part simple performed its expected function, it would probably not be considered patentable. But if one developed a completely new bearing assembly for the jump rope, the bearing assembly itself would be patentable, and a jump rope incorporating the assembly would likely be patentable. If it were a known bearing assembly, but the conventional view was that such an assembly was not suitable for a jump rope, but someone found a way to make that bearing assembly work in a jump rope, that would most likely be patentable and so on and so forth. There rarely are simple binary answers when talking about these things.

The question of whether or not a patent is valid and what to do about it, is generally only something that is relevant for big companies with deep pockets.

 

[DeppyJ]

Hey everyone,

I need some serious relief. Every time I want to sell something, in the back of my head I keep thinking I am going to infringe on a trademark or patent without even knowing it. So, I search. So for patents and trademarks I use USPTO and google patent search. Even after I search these I feel uneasy like I didn't do a good search or I could have missed one thing. When I do see a patent similar to mine, its like "Maybe I am infringing? Maybe not?" I can never say for sure.

It doesn't sound feasible to hire a professional to search since I am just a small time entrepreneur right now. The cost of professional search will probably cost more than the entire lot of products I plan to sell and all other business costs. The items that I plan to sell are less $20.

The other part of me is thinking that I am worrying way too much and should just say screw it and source/sell anything without thinking about it.

Example, I get a sample from alibaba for a jump rope. The ball bearing on this jump rope looks good and works well. Shit..., maybe there is a patent on it. I'll find something else...so on and so on.

Trademark question as well. If I get a DBA for a XYZ Company, I realize that it is not registered under the secretary of state, but rather under each town. So, I did a search for available business names under secretary of state. I type in XYZ Company. It says its available. But if I have a DBA and already put a TM on my logo and business name and then someone else has XYZ company, LLC and they put TM on the same business name what happens?

Questions like these are so damn hard to find on the internet, I get like scraps of information from each webpage.

Should I stop worrying and hope that sometime in the future I don't ever infringe on a patent? Because to me if I infringe on a patent its game over. They will sue me to oblivion since its a DBA under my SSN, I will pretty much be dead meat

EDIT: Or another bad scenario, get told to stop selling. Have hundreds of stuck inventory. Example, Thing like the theracane. There has got to be a patent on that. But yet I see other companies selling them.

When I read your post I got a bit relieved because I found someone who has been through this as well.

I have the exact same "problem" on my business. I am building my own online publishing company using Amazon (Kindle, CSP and ACX publishing) and knowing that I depend on them, I am afraid to do anything that may result to them closing down my account. I have a bit of success and I know exactly what to do to take the business to the next level, but things like that stop me from taking action. I feel like my hands are tied!

I have created a brand name and had a logo made for me, in order to make the business more of an authority on my field of publishing, but I haven't trademarked it or anything. I don't even know if the designer who made the cover for me did a trademark research before creating it. I have no knowledge on law or trademarks and copyrights whatsoever and all of this seems to me so hard.
I want to promote the heck out of my author and books, but I am afraid to use the logo on social media, creating a facebook page, instagram profile etc. I have so many ideas but I am afraid. Afraid I will infringe someone's copyright and afraid I will put it out there and they will steal my idea. It all seems so hard.
I see this post is from 2015, so maybe you did find a solution to this? Maybe you can give me some advice? Maybe a tip, something, really anything would help. I really don't know to whom to talk to get help on this. :/

 

[TreyAllDay]

It sounds like you're selling physical products, and I don't know much about that. I can tell you what happens in the software world, though:

There is not a single piece of software out there that doesn't violate someone's patent. Therefore, no one bothers to check before they publish. We worry about this stuff when we get big enough to sue. Software, though, might be different from physical products. They hand out software patents for the most ridiculously simply things - stuff that a 15 year old coding in his mom's basement could come up with.
.

You're right to be concerned about inadvertently infringing someone else's IP. But you also shouldn't let it keep you up at night. It's another risk of doing business, another of the many risks an entrepreneur has to be mindful of.

I'm a patent attorney, and I advise entrepreneurs that are just starting out all the time. How much you need to worry about and spend on intellectual property is a risk/benefit analysis. And you have already done that. You said that with the price point of your products, it wouldn't be feasible to consult an attorney for a product clearance every time you introduce something new. But, within your budget, you're doing what you can. You're doing your own patent searches and making an honest effort to locate IP that you might infringe. If something turns up that you are really concerned about, you could have an attorney look it over. He/she can tell you, informally, whether it is something to be concerned about. Having a written opinion drafted with a full infringement/non-infringement analysis will cost tens of thousands of dollars and is likely not necessary for you.

I know this thread is old - but thank you both for advice. I am a software entrepreneur and this has been keeping me up A LOT lately. I created a new service (loyalty program) for one of my customers, not making millions or actively promoting it, just a few grand a month for the contract.

Doing a Canadian patent search, I cannot believe the broadness of some claims. IE: one company seems to be claiming the general idea of a customer checking their balance through an interface, and converting that balance to a "currency value" using a computer program. Or even the concept of a company looking up a points value on a system and applying it to a transaction. It seems so odd that a company can own the idea of multiplying points by their dollar value and using it to reduce an invoice. And to be honest, there is so much legal jargon and confusion in the claims I have no clue what they are claiming.

I have been worrying a lot about it, but it seems like I shouldn't unless I grow it to the point that I am a threat.

 

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