Patent Attorney and Founder
Lysol, right? This is a brand we probably have heard a lot about recently with all the COVID stuff going on. It’s a brand, right? How do you tell whether a product is patented or trademarked? How do you find out? Did you know that Lysol actually has a registered trademark, and how would you know that? Well, it’s got an “R” with a circle on it. Crisp Linen has a registered trademark as well. How do they get that? Let’s talk about it today.
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I’m J.D. Houvener, managing partner and CEO at Bold Patents Law Firm. Today we’re going to talk about how to look for products and know whether they’re patented or trademarked. What to look for, how to do that research. So this video will cover a lot of different subjects, and I know you may not be able to sit through the whole video, so please look at the bookmarks and the timestamps below. What we’re going to cover today is four major topics: patenting, how to do the research on the actual product that you’re holding and looking at it to tell whether they have patent rights and what that means for you. Then, how to do the research online, whether looking at products they’ve listed on their website or on the USPTO or Google Patents website to see what rights they might hold for that specific product. Then, we’re going to look at the trademark side, the next two components: trademarks on the actual product, how do they got it labeled, what does that mean, where to find it, and what does that significantly mean for you and your own business. Then, of course, trademark searching. What about that company or that product? Can you find out online? Where to go look to research what rights they have on that specific logo or word mark?
Alright, let’s jump into it. So with that bookmark in mind, the first subject is going to be patent research on the product. What have they got listed on? The most common way to label a patented product is going to say “patented,” then the number. So there are two different ways to do that. It says “US Patent,” and it’ll say “D,” the letter “D,” and then a set of numbers. If there’s a “D,” like “D” like dog, that means there’s a design patent on that specific product. Design patents are just not that prevalent. There are not that many design patents out there. I think today, as I record this video, there are fewer than one million, and it may sound like a lot to you, but on the utility patent side, there are over 11 million utility patents that have been issued. So, more than 10 times as many utility patents than design patents. If there’s not a “D” in front of that, it says “US,” and then it’ll be a seven-digit number, maybe even an eight-digit number, out into the 10 million plus range. That is like the utility patent that they own.
Now, if they don’t have a number, if it doesn’t say “US Patent” and then a nine or eight-digit number, you will want to then look for “patent pending.” Sometimes it’s abbreviated as “pat. pending” or “pat. pending,” so if it says that, all that means to you is that they have filed a patent application. What you’ve got to understand about that is that it could mean a provisional patent application. It could mean a design patent application or a non-provisional patent application. The tough part about that is that you’re not going to be able to know when they filed or what kind of application it is unless it’s been published. In the U.S., the patent applications that get filed don’t get published for a year and a half after their submittal, and sometimes they never get published because it’s a provisional that doesn’t get followed up by a non-provisional a year later. A little bit of history, a little bit of background on provisional versus non-provisional. A provisional is a less formal version of a utility patent application, and it must be followed up, must be followed up by a non-provisional patent application within a year. If it’s not filed, that provisional gets abandoned and actually never gets published. But during that year, you bet it is totally legal for that company to put on their products “patent pending” because their patent is pending. They actually have filed their application before the USPTO, and that date is secure for just that one year. But if they never follow up with a non-provisional, that provisional has actually gone abandoned, and in truth, they are no longer pending. So, it’s a little bit of a misstatement for some products that if they actually have labeled “patent pending” but they never proceed with that non-provisional after a year, that patent’s truly not pending.
So, let’s jump to the second part of patent, how to find out whether a product’s patented or not is searching online. So, you’ve got, obviously, hopefully, you’ve got an image online or you’ve got the actual product in your hands about what you’re looking at, finding out whether this is a patented or not. If there’s no numbers and it just says “patent pending,” you can begin to research on the company name whether they may be the owner of that patent. And you can do so at uspto.gov or the public pair, which is the PAIR, the Patent Application Information Retrieval system. The PAIR is a quite extensive way to do research on what’s called the docket, also called the file wrapper, the history of that patent application. As I said, that is not public record until 18 months after that filing following the original application. So, you can go online. You can do some research on your own. Of course, you can hire a professional to do that research for you to see if this company really is out there, do they actually have a patent that’s truly still pending, or if they abandon their rights. That’s all available for you to at least explore on your own first before hiring an attorney, and I do recommend you start some of that to get familiar with the process and at least get an understanding of where you’re at in comparison to this product that you’re holding.
So that’s the patent side. And I’ll do a quick summary again. If you’re looking at the actual product and it says “patented,” USD, the letter “D,” and then a series of numbers, that’s a design patent, and it covers the ornamental features. Okay, it covers just what it looks like. If they don’t have a “D,” and they’ve got an eight or nine-digit number right there, that’s a utility patent, and they own the functionality of what that product does, not necessarily the way it looks. Moving to the trademark piece, I want to talk about looking at brands. Okay, so let’s look at the Lysol example I just gave you, looking at a product that has a well-known brand like Lysol or who knows, Arm and Hammer, right? Those products are likely registered because they’re well-known. Registration requires that you submit proof that you’re using that name or that logo in commerce, right? In
the market, and you’ve got to demonstrate you’re the only one out there using that name for your specific niche or industry. Once you’ve done that and proven that to the trademark examiner, you can get a registration, but only then will you be able to put the “R” with a circle. So, if you see a brand, a logo, or even an overall architecture that has a symbol that has an “R” with a circle, that means they’ve got a registered trademark, and you better watch out. Anything that similarly arranged or looks or sounds like that word for the same industry will likely be an infringement of their trademark rights. If you just see a “TM,” okay, a “TM” that’s used, in essence, like a patent pending, it’s a trademark pending, meaning they’re using that name in the stream of commerce, and they’re letting people know that they’re using this mark, but they haven’t yet gone through the process of getting examination of that by a trademark attorney by the USPTO. They have not yet approved it to be a registered mark. They’re likely well on their way to getting that, and there is some enforceability under trademark law where you can actually take someone to court and enforce your rights even at that pending state. I won’t speak too much more about the litigation side on trademarks, but there is more power in using that “TM” if you’re intending on using that mark for registration later.
Of course, aside from the actual product, like we just looked at with this Lysol container, you can look at more than just this. What’s on the container itself? You can take a look at the company online. Now, the way you do that is by looking at the Trademark Electronic Search System. You can also, of course, look at Google and put in the product name and see, is this truly registered? Can I really count on that? And sometimes, a product that you’re holding maybe old. The labeling on it was printed years ago, but they legally don’t have the rights anymore. And with trademarks and with patents, it’s true that you must pay to maintain your rights. And so, you have to pay to update and maintain that registration status, and it could be that they’ve let those rights go. They’ve moved on to a different company name or a different logo, and those rights may have gone abandoned, and that may mean that you could be able to grab onto that name and use it for your own commercial purposes.
So, I hope this has been helpful for you, a quick little roadmap of looking at the patents and trademarks that are listed or maybe listed on a product and how to do some research to find out what that means in terms of trademark or patent rights for you. I’m your host J.D. Houvener, and I’m a managing partner and owner here at Bold Patents Law Firm. It’s been a pleasure talking with you here today, and I want to let you know before I go that if you’ve got time and you haven’t yet done so, please visit our website at boldip.com and grab a copy of my book “Bold Ideas: The Inventor’s Guide to Patents.” That book is going to give you a lot of insights on all the areas of IP, including patents, trademarks, copyrights, and trade secrets. Have a great day, everybody. Go big, go bold.