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P. Simmons
P. Simmons, Attorney
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I have set up an LLC partnership and we are distributing/selling

Resolved Question:

I have set up an LLC partnership and we are distributing/selling wholesale a hair product that we purchase from the UK to hair salons so that they can sell to their clients. We also sell retail to individuals. We do not have any signed papers nor do we have any contract with the company that we purchase from. We simply order when we need to and that is it.

we want to know if we can legally sell this product as if it is our own. Can we develop a website and sell their product under our own name? Can we market this product under our own name legally? Or do we have to use their name since it is their product?

This hair product that comes from the UK has their own name, website, etc, but has no presence in the states as of yet. They do have a patent pending product.

Thank you for your advice on this!
Submitted: 1 year ago.
Category: Legal
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

You mention "patent pending"...so have they applied to the US Patent and Trademark Office for protection?
Customer: replied 1 year ago.

I am sorry but I do not know. Is there a way I can find out easily?


Customer: replied 1 year ago.

I do not know. How can I find out? I know it says on their website that they are registered in the UK. No mention of the states. But they may have applied here.

Expert:  P. Simmons replied 1 year ago.
Sure

And sorry for the delay (computer crashed)

The US Patent and Trademark Office (link below)
http://www.uspto.gov/patents/process/search/

Can allow you to search...though I caution that the web search is not real great...most folks who want to perform a search will pay an attorney to perform the search. This is a more efficient way to search.

If the product is patented or has applied?

I would not sell it in the US as your own product. That opens you up to liability for a violation of US Patent law.

Now...say it is patented in UK only and they have not applied for US patent. Can you sell it here? Can you patent it yourself?

You still run a risk

First, it is unlikely you can patent it...if it is patented in the UK, you are not going to be able to rename it and patent it...the patent process is designed to protect folks who invent products. So your patent application would not likely be successful.

Can you rename it and sell it?

You could...but you are still running a risk. If they have patented this formula and it is registered in UK only, then technically they can only enforce the patent in UK. But if it is registered in UK then it is a fairly straightforward process to register in the US. So if you launched a sales campaign for this product and then they find out and file to patent in the US, you may find yourself unable to sell it going forward.

Consider a license.

You can negotiate a license with them to brand/market this product. You pay them a fee (whatever you negotiate) and that gives you the rights (for the period you negotiate) to sell this product as your own int he US. If they have no presence? That may be a good way to go about this. But get a lawyer...you want to negotiate this so that if it takes off? Your marketing efforts are successful? That you are protected to be able to sell this for the foreseeable future...you need that language in any contract you negotiate.


P. Simmons, Attorney
Category: Legal
Satisfied Customers: 27006
Experience: 16 yrs. of trial experience
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P. Simmons
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