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socrateaser, Lawyer
Category: Intellectual Property Law
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Experience:  Retired (mostly)
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I have an idea that would place a manufactured product in another

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I have an idea that would place a manufactured product in another setting. What are my options to protect the idea? Thank you!

Difficult question.

A copyright cannot be used to protect a physical product (except software code, semiconductor masks, architectural drawings and ship hull designs).

A patent cannot be used to protect an already published utility, nonfunctional design, or process.

Your facts suggest that neither copyright nor patent protection will offer any protection.

A trademark can only be used to protect a particular product, to the extent that others attempt to suggest that their version of the product is actually that of the trademark owner. Example:

Sony manufacturers an HDTV. The TV is the product of many different individual elements, some may be patented or copyright protected -- others not. The HDTV concept itself cannot be protected -- anyone can build and market one. But, only Sony can build and market an HDTV that actually displays the Sony trademark -- and only Sony's HDTV can contain Sony patented and/or copyright protected elements.

The point here is that assuming that your ability to protect a marketing idea for an existing product requires a combination of (1) obtaining a license from the manufacturer for any portion of the existing product that can be protected via copyright or patent; and (2) marketing the remainder of the product with your trademark, rather than the manufacturer's, but only after obtaining a license to market. The reason for #1 is obvious. The reason for #2 is that where an existing product is functionally identical to a preexisting product marketed under an existing trademark, the original manufacturer can argue that your product is diluting the original manufacturer's good will -- even if you do not use the manufacturer's trademark.

BotXXXXX XXXXXne, if you want to be able to utilize your idea in any substantive manner, you will almost certainly need a license from the original manufacturer. Once you have this, you can protect your idea against others who may attempt to usurp your new use.

Please let me know if I can clarify or assist you further.
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