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socrateaser
socrateaser, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 38264
Experience:  Retired (mostly)
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My company, Gilbert Manufacturing Co. has produced a product

Customer Question

My company, Gilbert Manufacturing Co. has produced a product for more than 30 years. I have discovered a number of identical copies that are being produced in China and distributed in the United States. This product was patented 60 years ago. Some of the distributors are actually marketing the product as a "Gilbert" style item. What remedies do I have?
JA: What's the invention's purpose?
Customer: It is a male attachment plug that is used on lamps and decorative/display lighting.
JA: Have you talked to a local attorney? Has anything been filed in court?
Customer: I have not.
JA: Anything else you want the lawyer to know before I connect you?
Customer: No
Submitted: 3 months ago.
Category: Intellectual Property Law
Expert:  socrateaser replied 3 months ago.

Hello,

Does the competitor's product actually display the name "Gilbert", on the product, or on any accompanying literature (if any)?

Do you have a registered trademark on the term Glibert with respect to lighting?

Customer: replied 3 months ago.
No and no.
Customer: replied 3 months ago.
The literature says Gilbert style...
Expert:  socrateaser replied 3 months ago.

Okay, thanks.

Regrettably, under 15 U.S.C. Section 1125(c)(3)(A)(i), trademark law does not apply to: "advertising or promotion that permits consumers to compare goods or services." By using the phrase, "Gilbert style," the vendor falls within the above-referenced exception to U.S. trademark law.

Your recourse would be: (1) change your design to something that's unique and nonobvious, and obtain a trademark that you would imprint on your product(s); and a patent for the design; or (2) create some new unique and nonobvious (patentable) modification to the product that you can market as making your product superior to your competitors; (3) market your product as superior to your competitors, because yours is the original.

None of the above will provide you with immediate relief against your competitors, unless one or more of them decides to get rid of the "style" term in describing your product. If that occurs, then you can sue for infringement. However, in order to better protect yourself, you need to also register a trademark on your product name.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

Expert:  socrateaser replied 3 months ago.

Hello again,

I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?

If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer (click 3, 4 or 5 stars) – otherwise, I receive nothing for my efforts in your behalf.
Thanks again for using Justanswer!

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