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alex reese
alex reese, Attorney
Category: Legal
Satisfied Customers: 3424
Experience:  BS, MS, JD
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Hello, We have been making "Redneck wine glasses" but I

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Hello,

We have been making "Redneck wine glasses" but I recently realized a company named Carson licensed them and has a patent pending. They call theirs the "Original Rednek Wineglass." They are now very popular and sold by many (the "Original" and others doing what I am) but I am wondering if we are doing something wrong now by selling them. We have a variation in ours with a different colored custom stone between the stem and drinking glass in each of ours so you can tell your glass apart from the others, but otherwise it is the same product. It is offered on our website along with other products of ours and I'm wondering if we should be taking it off our offerings.

Thank you in advance for any reply,
Michelle

alex reese :

hello

alex reese :

there may be some confusion in your question about trademarks versus patents. The name could be protected by trademark, but I don't think a wine glass could have patent protection (except may a design patent, but that is unlikely)....so i'm wondering if your question is just a TM question.

alex reese :

...or both

alex reese :

with respect to the name, there could definitely be a TM issue if they have been using the name longer than you (and especially if they have a federal TM and/or operate in your state/area)

alex reese :

as for the patent....it can't be enforced unless the patent is granted. To see if you are infringing the patent, you have to compare the patent claim to your product...it is only infringing if your product meets/satisfies all elements of one claim (a patent attorney needs to do this comparison ideally....unless it is very simple)

alex reese :

let me know if you need clarification or have a question

Customer:

Thank you for your reply thus far. I understand the trademark issue in general as we have gone through it for our other products but I am still wondering a couple things...they spell theirs "Rednek" to play off the term. Can I still call mine "Redneck" with the proper spelling or do I need to deviate further? Carson does refer to "patent pending" on their product and the glasses in question are a ball jar (typically used in canning) bonded to a specific type of candlestick holder that may not appeal to the serious connoisseur, but is actually quite charming to many. We put a custom colored stone between the two parts to identify the glass which is the primary difference between their offering and ours. So I am wondering with this clarification if there is potentially a design patent and once given if ours would then be an infringement. Any additional thoughts are appreciated.

Customer:

Thank you for your reply thus far. I understand the trademark issue in general as we have gone through it for our other products, but I am still wondering a couple things...they spell theirs "Rednek" to play off the term. Can I still call mine "Redneck" with the proper spelling or do I need to deviate further? Carson does refer to "patent pending" on their product and the glasses in question are a ball jar (typically used in canning) bonded to a specific type of candlestick holder that may not appeal to the serious connoisseur, but is actually quite charming to many. We put a custom colored stone between the two parts to identify the glass which is the primary difference between their offering and ours. So I am wondering with this clarification if there is potentially a design patent and once given if ours would then be an infringement. Any further thoughts are appreciated. Thank you, Michelle

Customer:

Thank you for your reply thus far. I understand the trademark issue in general as we have gone through it for our other products, but I am still wondering a couple things...they spell theirs "Rednek" to play off the term. Can I still call mine "Redneck" with the proper spelling or do I need to deviate further? Carson does refer to "patent pending" on their product and the glasses in question are a ball jar (typically used in canning) bonded to a specific type of candlestick holder that may not appeal to the serious connoisseur, but is actually quite charming to many. We put a custom colored stone between the two parts to identify the glass which is the primary difference between their offering and ours. So I am wondering with this clarification if there is potentially a design patent and once given if ours would then be an infringement. Any further comments are appreciated. Thank you, Michelle

alex reese :

As for the TM issue, the difference in spelling will not be important (and may not matter at all) because the names are XXXXX XXXXX similar and the casual observer won't even notice the difference (and they would be pronounced the same as well. As for the patent, it could be a design patent that is pending, which can't be enforced until it is granted. Design patents are very narrow in their scope your product would have to satisfy the claim in the patent....there is no way I can tell if it would infringe, I would need to see the patent claim and the product and do the proper comparison (but that is beyond what can be done on this website....but you might want to consult a patent attorney about it, it would be good to know when and if the patent is granted).

Customer:

Thank you, XXXXX XXXXX

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