Legal Question in Intellectual Property in Utah

I don't know if this is considered, copyright, patent, trademark infringement or none of the above and if there is anything I can do. I designed a product (hats) and had it manufactured overseas. I then sold some of the product on a website:

2 other members of this forum used pictures of my product that they bought from me (the whole thing is documented on this website) to run group buys and have this product I designed mass produced for them to resell. A "Group Buy" is when a bunch of people join together to buy something that needs to be bought in a large quantity to receive a lower price and then split the product up to resell.

The products I am concerned with are a sock monkey hat and a cupcake hat. I did not invent sock monkey or cupcake hats. I just really do not want these people to continue to have these hats mass produced based on my exact design so they look exactly like my hats. The problem is that they are reselling them to the public at a price similar to what I am wholesaling to stores. Then my wholesalers are concerned about the prices and so on and so on.

I wouldn't care if they knocked off the hat and it didn't look exactly the same. Is there anything I can do? Is a pink sock monkey hat different enough that I could get some kind of intellectual property rights on it? I just hate that they are running these "group buys" in a forum where I sold my product. Hope this makes sense and isn't too rambling. Would a "cease and desist" letter be completely unfounded and off base or would it help?

It is very blatant and they admit that they are doing it, they just won't stop and tell me that I "didn't invent the sock monkey hat". I realize this, but I don't want them to keep making the product to look exactly like mine.

Any help would be appreciated, even if it is only to tell me that I have no ground to stand on.

Asked on 12/08/10, 9:46 am

1 Answer from Attorneys

Kevin B. Murphy Franchise Foundations, APC

As a Franchise Attorney I would advise and ask a couple things. Have you tried to protect the design of your hats at all, as a design patent? Compared to traditional patents, these are relatively easy to obtain. Knock offs are a risk of business and unless they're doing something else, like using a protected logo in connection with the reproduced hats, a design patent is likely your only course of action to consider. Consult with a good IP or franchise attorney in your area for specific advice.

Mr. Franchise - Kevin B. Murphy, B.S., M.B.A., J.D.

Franchise Foundations, a Professional Corporation

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Answered on 12/13/10, 10:32 am

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